Ledelsens erstatningsansvar: En komparativ analyse af ansvarsgrundlaget for ledelsesmedlemmers erstatningsansvar i gældende ret og den nye Selskabslov

Mette Graven Bilde Andersen & Nina Dahle Rasmussen

Student thesis: Master thesis

Abstract

The purpose of this thesis is to analyze and evaluate the personal liability of the board members in Danish companies based on the role and duties of the board members. Will there be a change due to the fact that a new Company Act is implemented in Denmark as of 18 the January 2010 compared to the existing company laws for limited companies? One off the major changes in the new Company Act, is the possibility of more choices in the election of board structure. In the future Danish companies will have the possibility to organize themselves with either a one stringed, two stringed or the existing hybrid management model. This thesis is concerned with the problems arising from board members liability; which duties and tasks should board members of limited companies (A/S and ApS) perform to avoid a court case, in which they risk falling into personal liability? Will the new Company Act change the duties of the management in relation to the possibility of choosing between different management structures and what changes to the personal liability of the board is to be expected from the new company act? The analysis shows changes in the board members duties and responsibilities in the new Company Act; the paragraphs are more precise and specific than those in the existing Company Act, which could be interpreted as an increase in the personal liability of the board members, although this was not the intension of the modernization committee. This thesis shows that regardless of the choice of management model the personal liability will be the same. The changes consist of in which management organ the responsibility is placed. If the one-stringed model is chosen, the entire responsibility is placed at the executive board. If any of the two other models is chosen, the responsibility is divided between either the board or the supervisory board and the executive board. The new Company Act does not increase the liability directly. Future court cases will show whether the new paragraphs concerning duties and tasks are just rewritten, or the more precise and specific paragraphs in the new company act will result in increased professionalism and increased liability for the board. On the other hand the principles of “the business judgement rule and the culpa principle is continued in the new Company Act liability therefore one could agree that the probability of falling into personal liability will not change significantly.

EducationsMSc in Auditing, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2009
Number of pages123