Förhållandet mellan ogiltighetsregler och konkurslagens återvinningsregler - regelhierarki, till vilket pris som helst...?

Abstract

According to the Swedish Bankruptcy Act (SFS 1987:672) legal transactions can be reopened in cases of bankruptcy, if the transactions have been the cause of or were performed while the debtor was no longer solvent and thus harming the creditors. The legislations of the Bankruptcy Act chapter 4 §5 aim to protect creditors so that the debtor cannot withdraw their property in case of a forthcoming bankruptcy, as well as prevent creditors from taking measures against the debtor when the debtor is in financial difficulties. However, according to the Swedish jurisprudence there is a hierarchy as of according to which legal rules a legal transactions shall be enquired in case of bankruptcy. Firstly, a legal act must be valid, the transaction must thus be valid accordingly to either the law of contract, the law of property or according to the rules of corporate law. Each of these three legal areas have their own rules of annulment and any legal act has to be valid in accordance to any of the rules above before an action of reopening the transaction according to the Bankruptcy Act may be brought before a court. We question the hierarchy within the Swedish jurisprudence, arguing that the hierarchy makes bankruptcy actions more complicated and lengthier in time. In this study, we assess the annulment ground in each of the legal areas mentioned above and compare them to the Bankruptcy Act. We also examine the Swedish procedural law as to whether there are any obstructions to prevent a change of the present hierarchy.