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- Karlsson-Tuula, Marie, 1961-
(författare)
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Rekonstruktion av företag inom insolvenslagstiftningens ramar : en jämförande studie av svensk och amerikansk insolvensrätt
- 2001
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Insolvency law is the rooth of commercial and financial law because it obliges the legislator to chose. There is not enough money to go round so the law must chose who to pay. The law must always decide who is to bear the risk so there is always a winner and a loser. The insolvency law has been at the policy agenda in many countries in the last years. In France, Germany, Italy, Japan and other countries have the legal frameworks changed from liquidation procedures to reorganization business. The legal situation in Sweden has also changed from compositions to reorganization business, lagen om företagsrekonstruktion. The key issues are to encourage the formal proceeding by enlarging the debtors control of the business and by inroads creditors rights, in which case the proceeding is pro-debtor.This dissertation compares Swedish and American Bankruptcy Codes with respect to similarities and differences at macro- and micro perspectives. Chapter 11 Reorganization Business in America provides a corporate rehabilitation model, which has been used in other countries. The dissertation also compares the use of the concepts of - the purpose, - the function and - the direction of Swedish and American Bankruptcy Laws in order to establish whether the law is pro-debtor or pro-creditor. The key indicators of whether the rescue proceeding is pro-debtor or pro-creditor include; - How easy it is to enter the rescue proceeding. Debtor's incentives to commence proceeding, freeze on executions and liquidation petitions, impact on security, impact on title of finance, impact on set-off and netting, impact on contract rescissions and lease forfeitures. Disclaimer and abandonment, ability to replace the management, financing of the rescue, scope of the rehabilitation plan. It is argued that the optimal bankruptcy law can be achieved if the law purpose, the function and the law direction relate to each other in Sweden, in both reorganization business and in the liquidation code and it also compared with the American Bankruptcy Code. According to my opinion this is important both in a national and international context.The dissertation also deals with debtor's contract in an insolvency situation in reorganization business and in liquidation. Swedish Laws are compared to the American Bankruptcy Code and point out similarities and differences. In the American Bankruptcy Code there is a special section 365 § BC dealing with executory contract, this section is nearly the same for both the reorganization- and liquidationproceedings. The contracts must be unperformed which means the obligation of both the bankrupt and the other party in the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other. If the contract is unperformed the debtor has the possibility to chose if the contracts shall be assumed, assumed and assigned or rejected. Section 365 § BC requires the court to consider whether assumption of the contract in question will further be needed in either rehabilitation or liquidation of the bankruptcy estate. The court reviews the financial impact of the estate and if it is benefiting becoming administratively obligated to perform. The court also review if is best to breach the contract. In Sweden we have different sections which regulate the situation. One section in our reorganization law, lagen om företagsrekonstruktion, we also have two special sections in the law of Sale of Goods, which deals with contract when a debtor became insolvent or file for reorganization business. But we don't have any section in our liquidation law, konkurslagstiftningen, which in my opinion is very strange. We also have a problem with the legislation about swaps and netting which are regulated in a special law, lagen om handel med finansiella intrument. Particular attention is given to the advantages and disadvantages of the existing rules in Swedish legal system compared with 365 § in American Bankruptcy Code. From a national point of view such section should preferably include all types of contract in only one section which is nearly the same as the American model of section 365 §.
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| 4. |
- Eneman, Marie, 1969
(författare)
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Developing child protection strategies: a critical study of offenders’ use of information technology for the sexual exploitation of children
- 2010
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The overall aim of this thesis is to critically explore offenders’ use of information technology for the sexual exploitation of children, focusing upon child abusive material and grooming, in relation to the societal response, i.e. legal and technological regulation models. The following aspects are highlighted (i) How can offenders’ use of information technology for child abusive material and grooming be understood in relation to current regulation models? (i) What alternative models for regulation of child abusive material and grooming could be proposed? (iii) What are the implications of applying a critical approach? The motivation for conducting this research has been to contribute, with empirically based research, to the development of effective child protection strategies in relation to child abusive material and grooming. The empirical material used in this thesis consists of court and police records and interviews with offenders. The result shows that offenders’ use of information technology for child abusive material and grooming is more complex and multifaceted than current regulation models have managed to envisage. It has been recognized that the offenders are aware of the illegality in their activities and thus the risk of being observed by law enforcement and have therefore developed different technological and social strategies to be able to continue with their criminal activities. Therefore, this thesis suggests that existing regulation models such as law and the use of technology for filtering should be re-evaluated and that further dimensions such as norms and markets should be considered.
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| 5. |
- Behrendt Jonsson, Britta, 1973-
(författare)
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The Solvency II Capital Requirement for Insurance Groups : On the Tension Between Regulatory Law and Company Law
- 2018
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Since 2016, supervision of insurance undertakings in the European Union has been based on the Solvency II legal Since 2016, supervision of insurance undertakings in the European Union has been based on the Solvency II legal framework. Insurance undertakings that are part of an insurance group must be sufficiently capitalized both at company level and at group level. For the calculation of the group solvency capital requirement, insurance groups are regarded as if they were a single economic entity, whereas company and insolvency law apply a legal entity perspective and focus on each single company that is part of a group. The underlying expectation that excess own funds within a group will be used to support a group undertaking in financial difficulties is not reflected by a corresponding legal obligation.This tension between regulatory and company law is discussed in the thesis. The rules on the calculation of the group solvency requirement and the eligibility of own funds at group level are analyzed against the background of German and Swedish company law and possible solutions to align the two areas of law are discussed de lege lata and de lege ferenda. Despite the full harmonization approach of the Solvency II Directive and the aim of reaching supervisory convergence throughout the EU, the study reveals differences in the application of Solvency II in Germany and Sweden.
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| 6. |
- Bruncevic, Merima, 1981
(författare)
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Fixing the Shadows – Access to Art and the Legal Concept of the Cultural Commons
- 2014
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Fixing the Shadows: Access to Art and the Legal Concept of Cultural Commons studies access to art as knowledge, and the role law plays in facilitating access. The research project discusses how to advance and strengthen access to art and create legal pathways that facilitate communication, access to and sharing of art as knowledge. Thus, the study introduces the legal concept of cultural commons and discusses how such a concept may be introduced to law and given a legal platform. The study utilises the theories and methods of the French philosopher Gilles Deleuze (1925-1995) and the French psychoanalyst Félix Guattari (1930-1992) in dealing with law and jurisprudence. It focuses particularly on the concept of the rhizome. The theoretical aim of the study is to develop a critique of dogmatic law and to study particular obstacles to access to art created by traditional approaches to legal concepts. Consequently, through a rhizomatic jurisprudence a legal concept of cultural commons is developed and presented. The study is divided in two volumes. Volume I is called “Beyond the ontological question” and it studies obstacles to access to art created by law and certain types of traditional legal reasoning, it aims to bring forth the potential of law. Volume II analyses the cultural commons as a legal concept and is called “The Performativity of the Commons”. Volume II analyses the potential of a legal concept of cultural commons.
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| 7. |
- Bäckman, Therese, 1981
(författare)
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Gynnande besluts negativa rättskraft och rättssäkerhet – för människor med funktionsnedsättning inom rättsområdena SoL och LSS
- 2013
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- A principle of legitimate expectations exists in a number of countries and legal systems. This thesis examines the implications of the principle and its application on a municipal level and in the administrative courts in a Swedish context. The aim of the thesis is to examine whether persons with disabilities are ensured legal certainty, through the principle of legitimate expectations, after they have received a formal legal decision about support in their every day life according to the Social Services Act (2001:453), SoL or according to The Act Concerning Support and Service for Person with Certain Functional Impairments (1993:387), LSS. The Swedish principle of legitimate expectations implicates that a favor- able decision may not be changed or revoked after the individual has received notice of the decision. This applies even if it subsequently turns out that the decision is found to be incorrect. The authorities have to stand by their decisions. The individual can feel secure that the decision may not be reversed or altered and he/she are therefore free to plan and adjust his/hers life in accordance with the decision. However Supreme Administrative Court case law has formulated three exceptions from the principle. Exceptions may be made when 1) a decision is provided with a revocation statement; 2) imperative security reasons require modification or revocation; 3) the individual has obtained the decision by false information. In addition Supreme Administrative Court case law also provides an exception that applies specifically to favorable non time-limited decisions under SoL and LSS. In this thesis the concept of legal certainty requires fulfillment of both procedural and substantial requirements. Furthermore it is concluded that the principle of legitimate expectations can be described as a guarantee for legal certainty from a theoretical point of view. However, the examination of the application of the principle shows how the municipalities have rather ample opportunities to make exceptions with the use of statements of revocation. Additional opportunities to make exceptions or circumvent the principle have also developed in practice. The relatively large possibility to make exceptions from the principle and the extended ways to circumvent the same means that it is difficult for the principle to fulfill the procedural requirements linked to the concept of legal certainty. The application of the principle also leads to social insecurity for persons with disabilities that have been granted support in every day life in accordance with SoL and LSS. Previous research has concluded that persons with disabilities are faced with legal problems within the areas of SoL and LSS. This thesis shows that persons with disabilities are faced with additional problems due to lack of legal certainty. The image of the legal problems within SoL and LSS needs to be complemented with the problem that the individual is in fact not guaranteed the support and service that he/she has been granted. He/she can not feel confident that the favorable decision will prevail.
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| 8. |
- Duus-Otterström, Göran, 1978
(författare)
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Punishment and Personal Responsibility
- 2007
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- What justifies punishment? What are the features of a justified penal regime? Answers to these questions often centre on punishment’s capacity to change unwanted behaviour, either by deterring would-be rule breakers or addressing their criminal motivations through various forms of rehabilitation. This book instead defends (a version of) the retributive theory of punishment, according to which punishment should aim to give rule breakers what they deserve. Why should desert play such a role in penal justice? The book dismisses the controversial notion of intrinsic-good retributivism, and instead proceeds to identify two merits of a penal regime that aspires to give rule breakers what they deserve. On the one hand, such a regime is in better alignment of central principles of justice, such as principles against punishing the innocent and taking pre-emptive action against potentially dangerous individuals. On the other hand, retributive punishment conveys attractive symbolic messages, which serve to validate rule breakers as personally responsible agents whose choices warrant respect. Having defended the retributive theory on normative grounds, the book then discusses a formidable factual criticism that hits all desert-sensitive theories: starting by questioning the alleged difference between scientific explanations and excuses, the book challenges the factual plausibility of the notion of personal responsibility and entertains the possibility of hard determinism being true. While hard determinism is a stronger position than one may think, a pragmatic argument can be made against it: given that libertarian free will is “worth wanting”, and given the epistemic uncertainty surrounding it, it is defensible to bet that determinism is false and that people indeed can be personally responsible for their actions. Punishment and Personal Responsibility may be understood as a defence of “prescientific” morality in the age of science.
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| 9. |
- Gerson, Anna, 1977-
(författare)
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Compensation of Losses in Foreign Subsidiaries within the EU : A Comparative Study of the Unilateral Loss-Compensation Mechanisms in Austria and Denmark
- 2009
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This study commences in the problems related to the restricted possibilities for cross-border groups to take losses incurred in foreign subsidiaries into account upon taxation. These difficulties lead to the situation where the overall tax burden of the group, seen as an economic unit, might exceed its economic capacity. Such over taxation is likely to cause the cross-border group cash-flow disadvantages, liquidity problems, reduced expansion possibilities and it might also effect the organisation and location of the group’s business activities. This study has two research aims; firstly to analyse unilateral compensation of losses in foreign subsidiaries de lege lata, and secondly to analyse the consequences of different alternatives, as well as refraining from taking specific measures, upon opening up a unilateral system to cover also foreign losses de lege ferenda. In these respects, the experiences from the Austrian and Danish unilateral loss-compensation systems, under which losses incurred in foreign subsidiaries are acknowledged, serve as valuable sources of information. The findings in the study are evaluated based on the fundamental objectives that ought to be balanced from the perspective of the group as well as the loss-granting state. These objectives are; the recognition of the ability of the cross-border group, seen as an economic unit, to pay taxes; the prevention of double dip of losses, and the prevention of arbitrary as well as permanent income shifting between MS.
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| 10. |
- Grylin, Hanna, 1984-
(författare)
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Passivitetsrätten vid skattetillägg
- 2019
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- When a taxpayer fails to fulfill the obligation in Chapter 30 Section 1 and Chapter 31 Section 3 of the Swedish Tax Procedure Act, skatteförfarandelagen (2011:1244), the STPA, to submit information about his or her taxable income, he or she becomes liable to pay a tax surcharge. Decisions about tax surcharges can be made in both administrative and criminal proceedings. In fact, decisions on tax surcharges may be made due to a taxpayer’s passiveness during a criminal tax procedure, regardless of the intent. However, the European Court on Human Rights has established that a person’s silence is not, in itself, sufficient proof for a conviction. This causes a tension between the obligation to submit information about taxable income and the right to silence and the right against self-incrimination in the Swedish tax surcharge procedure.The purpose of this thesis is to analyze the relationship between the Swedish system of tax surcharge and the right to silence and the right against self-incrimination according to the ECHR, the EU Charter, Article 3 Section 1 (e) of Directive 2012/13/EU and Article 7 of Directive 2016/343/EU. The method used to analyze these problems and discuss solutions combines a legal dogmatic method with an autonomous interpretation of the right to silence and the right against self-incrimination. The analysis shows that problems occur after the point where a taxpayer has been charged with a criminal offence according to the autonomous meaning of the concept. This point in time corresponds to the point in time when action is taken by the Swedish Tax Agency that has a substantial impact on the taxpayer. The analysis also shows that if a tax surcharge is levied only because of a taxpayer’s silence, after that point, there has been a violation of the right to silence and the right against self-incrimination according to the autonomous meaning.The conclusion of the thesis is that there is a need for an amendment to the STPA, which reinforces the autonomous meaning of the right to silence and the right against self-incrimination in the Swedish tax surcharge procedure. This includes new rules in the STPA, which define 1) a duty for the Swedish Tax Agency to inform taxpayers about the right to silence and the right against selfincrimination, 2) the scope of the taxpayer’s obligation to submit information about taxable income in relation to the right to silence and the right against selfincrimination and 3) rules on exemption from tax surcharge when it violates the right to silence and the right against self-incrimination.
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