Barnets bästa vid utmätning och exekutiv försäljning av bostäder i svensk utsökningsrätt
Sammanfattning: The subject of the present thesis is children’s rights in the process of debt collection. The main focus of the thesis is article 3.1 of Convention on the Rights of the Child (CRC) and its legal relevance in proportionality tests prior to decisions on seizure and sales of houses and apartments in Swedish insolvency law. The thesis is based on two studies. One legal dogmatic study on Swedish enforcement law and article 3.1 of the CRC, and one empirical study on the parties’ argumentation in the Swedish Enforcement Agency case law. The legal dogmatic study focuses on how article 3.1 of the CRC is described in Swedish legal sources. The analysis takes as a starting point that article 3.1 is a threefold concept containing a substantive right, a fundamental interpretative legal principle, and a rule of procedure. These three parts of the right are understood as connected. In order to make nuanced proportionality tests and respect article 3.1 as a substantive right, the decision maker needs information about the child that the decision concerns. The process must include an evaluation of the possible impact of the seizure or the sale. Such impact can only be evaluated if the decision maker has access to information about the child. Many of the conclusions of the thesis elaborate on how to create safeguards in the process of debt collection, in order to make sure that decision making is based on substantive information about children who are at risk of losing their homes. A considerable part of the thesis is also aimed on how information can be used in order to respect the creditor’s interest of regulating debt and getting paid. The thesis also suggests as an overarching conclusion that Swedish enforcement law can create several safeguards to ensure that children’s rights are taken into consideration more consistently and in a more nuanced way in Swedish law. I argue that this can be done by regarding information that is already collected by the Swedish enforcement agency (Kronofogdemyndigheten) in its existing proceedings. The empirical study shows that Kronofogdemyndigheten collect several points of information regarding the debtor and their children that is not taken into consideration in the proportionality tests by many of its decisions makers. I argue that some of that information ought to have a more central part in the legal decision making. Further, I argue that the child’s interest should be referenced in all decisions concerning children. When a decision is contested, the district court should always be informed that the debtor is a parent. This is an important safeguard to make sure that children’s rights are taken into account in decisions on seizures and sales of houses and apartment in Swedish law in a consistent way. The legal dogmatic analysis is also informed by the empirical case study. The empirical study is qualitative and contains an analysis of the argumentation from legal practitioners at Kronofogdemyndigheten. In the empirical study, I show how information is used in legal argumentation regarding the creditor’s interest and the child’s interest of its home. The study shows that there is a number of practitioners that use information at hand in order to make more nuanced arguments on the legal relevance of the CRC and the child’s interests. These nuanced arguments are studied and used as best practice insights in the legal analysis. Further, the empirical study shows that some information about children and other types of information on the economic situation of the debtor, often the parent, was not used in the decision making during the studied period. I also contribute with suggestions on how information that is always available for Kronofogdemyndigheten ought to be used in the decision making. The empirical study is based on data from the period of 2018-2019. It is therefore a study on how legal argumentation on the CRC was done prior to the incorporation of the CRC in Swedish Law. Since the incorporation, Kronofogdemyndigheten has issued a number of documents with descriptions on the authority and its interpretations of its legal obligations with regard to the CRC. Kronofogdemyndigheten described the incorporation as a clarification of what Swedish law was/demanded, also prior to the incorporation. The empirical study is used to compare how the CRC was used in legal argumentation prior to the incorporation, and how the CRC is described by the authority after the incorporation.
Denna avhandling är EVENTUELLT nedladdningsbar som PDF. Kolla denna länk för att se om den går att ladda ner.