Bestyrelsens erstatningsansvar: En komparativ analyse af ansvarsgrundlaget for bestyrelsesmedlemmers erstatningsansvar i gældende ret og den gamle aktieselskabslov

Stina Emilia Kjellberg

Student thesis: Master thesis

Abstract

The purpose of this master thesis, is to analyse and evaluate the personal liability of the non executive board members in Danish limited companys (A/S). In 2010 a new Company Act was implemented into Danish Law. A lot of rules and laws was relaxed with the implementation, and have thus been made more flexible. For instance, it is now possible to choose from a two stringed, or the existing hybrid management model. Although the legislator has relaxed the rules, no change has been made in the liability rule. To make up for the relaxation of the rules, legislator has implemented more precise rules when it comes to the non executive board members tasks and duties. The question is therefore which tasks and duties should the board members now perform, to avoid personal liability, in comparison to under previous legislation? Do the rules that just have been implemented mean that the liability has now been made more strict? Further does the rule of liability in the Company Act change the incentives of the board members, so that their behaviour changes, and will the change mean that they act more economically efficient, or is there another rule that give a more economically efficient solution? The analysis shows changes in the non executive board members duties and responsibilities in the new Company Act. The rules are more precise and specific than the ones in the old Company Act. This could mean that the personal liability has become more strict, however, the rules have just been specified after how the courts previously interpreted the rules. It has now become more clear as to which duties and tasks a board member has. It has never been liable to be stupid, but it is now much more difficult to hide behind this rule. Furhtermore, the rules forces the board members to be more educated when it comes to how a company is run without a real requirement for professionalism. The conclusion is therefore that the liability has not been directly made more strict, and has not changed significally. The rules have not changed the behaviour of the non executive board members, as the rule of liability is the same. The anslysis has shown that the most efficient solution for neglience is culpa. Strict liability has the unwanted quality, that there will not be made any investments, because the price of the personal liability is too high. The non executive board member will thus not dare to invest if there is strict liability.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2012
Number of pages82