Styrelseledamöters lojalitetsplikt : Särskilt om förbudet att utnyttja affärsmöjligheter
Sammanfattning: Under Swedish law directors of limited liability companies have, without doubt, a duty of loyalty. It is also clear that the duty of loyalty is quite extensive. Due to mainly the lack of legal provisions and case law governing the duty of loyalty, the extent of the duty and the outer limits of it are unclear to both legal experts and practitioners. This legal uncertainty is detrimental to both individuals and companies and may also be detrimental to society at large.The overall purpose of the dissertation is to analyse and systematize the duty of loyalty for directors of a limited liability company. Within this overall purpose the aim is also to investigate certain basic principles and issues further, such as: (i) the directors' legal position;(ii) to whom the duty of loyalty is owed;(iii) the functions of the duty of loyalty;(iv) the further meaning and extent of the duty of loyalty, including certain identified specific duties, especially(v) the prohibition to exploit corporate opportunities; and(vi) the boundaries to other legal rules.The dissertation is based on a method of legal dogmatics. Due to the limited material that exist on the topic under Swedish law, comparative outlooks are made to Norwegian law, Danish law, American law, English law and German law. A number of important conclusions are drawn, of which some are presented below.The duty of loyalty is mainly derived from the directors' legal position, which is similar to that of an agent (Swe: syssloman). It is owed mainly to the company, which means that only the company may enforce breaches of the duty, save for beaches of the so-called general clause.The duty of loyalty is systematized as follows. From the general duty of loyalty, which thus includes a general duty to consider the company's interests and not to promote individual or others' interests to the detriment of the company, a number of particular duties of loyalty are derived, namely: (i) an obligation to avoid and disclose conflicts of interest;(ii) a prohibition on competition that may be detrimental to the company;(iii) a prohibition on improperly (Swe: otillbörligen) receiving or exploiting benefits or other advantages as a result of the assignment;(iv) a duty of obedience;(v) a duty of disclosure;(vi) a duty of confidentiality; and(vii) a prohibition on exploiting corporate opportunities belonging to the company.The meaning and extent of each of these duties are analysed further in the dissertation. Furthermore, the sanctions and legal consequences of a breach, such as damages, invalidity, unjust enrichment and the criminal sanctions are analysed briefly.Due to mainly the duty of loyalty's importance for investor confidence, its important functions and the breaches of the duty of loyalty that have occurred during the recent decades, it is proposed that the duty of loyalty and some of the specific duties are specified in the Swedish Companies Act.
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