”Det funkar i praktiken” Konkursförvaltares syn på behovet av lagreglering av abandonering

Sammanfattning

This essay examines bankruptcy trustees’ ability to abandon assets in bankruptcy (UK: disclaimer of onerous property) and how this is handled in practice. In this context, abandonment means that a trustee decides not to manage certain assets belonging to the bankruptcy estate and instead returns them to the debtor. There is no explicit statutory regulation of abandonment in Swedish law, but the practice has been recognised in case law, most nota-bly in NJA 2004 s. 777. At the same time, legal scholars have described abandonment as being based on uncertain legal grounds and, in some ways, as problematic. The aim of this essay is therefore to explore how trustees use abandonment in practice and how they view the need for statutory regulation. The essay combines a legal doctrinal method with semistructured interviews with seven bankruptcy trustees. The doctrinally based part of the essay shows that although abandonment is established in case law, its legal consequences are not fully clarified. In particular, bankruptcies involving environmental issues are repeatedly pointed out as especially challenging. In the legal literature, from authors such as Gregow, Håstad, Möller and Mellqvist, recurring criticism is directed at the lack of regulation, and several authors argue for clearer legislation. The interviews, however, present a somewhat different picture. The trustees describe abandonment as an established and generally well-functioning tool in their daily work. It is often used for property of low or negative value and often without formal abandonment decisions or specific documentation. According to the trustees, the problems discussed in the literature rarely arise in practice. The majority of the interviewed trustees are therefore against a general legislation, arguing that it could increase administrative work and reduce flexibility, which could ultimately harm the creditors. At the same time, even trustees who are critical of regulation identify environmental bankruptcies and the abandonment of real estate as particularly tricky situations. In these cases, the law feels unclear, and some trustees support having clearer rules or more guiding case law. Overall, the essay demonstrates a gap between the issues emphasised in the literature and the experiences of bankruptcy trustees in practice. While the literature largely focuses on potential risks and legal uncertainties, the trustees adopt a more pragmatic view, viewing abandonment mainly as a necessary and functional tool. By highlighting this practical perspective, the essay contributes to a more nuanced discussion of abandonment and the need for legislation.