Todellisen oikeuden arviointi keinotekoisissa järjestelyissä etenkin omaisuuden rahoittamisen näkökulmasta
Avainsanat:
ulosotto, keinotekoinen järjestely, todellinen oikeus, rahoitusAbstrakti
Assessment of the actual right in artificial arrangements, particularly from the point of view of asset financing
The article examines the interpretation of a third party’s genuine right when attaching property despite artificial third-party ownership arrangements under Chapter 4, Section 14 of the Enforcement Act (705/2007). Theoretically, the term genuine right refers to the material or financial interest of an independent third party. Based on the analysis, it is concluded that the actual right of a third party is demonstrated by counter-evidence to the objective criteria of artificiality. The actual right of a third party must therefore also be defined as the opposite of artificiality.
Subsequently, the actual right is discussed in more detail from the point of view of the financing of the asset to be attached. Financing carried out by the debtor is a strong sign of artificiality, and third-party financing is a strong sign of the genuine nature of third-party rights. The case law has also emphasised the possibility of financing by a third party as an indicator of their right being
genuine. This view can be reasonably criticised, as the financing opportunity may have been created as part of an artificial arrangement, either by channelling funds directly from the debtor to a third party or by exploiting another artificial arrangement. An interesting example of a special situation is when a third party has financed the acquisition of assets with a loan which they would not have received without the assistance of the debtor. Even in this case, the arrangement does not necessarily prevent attachment, in which case the assessment must take into account at least: 1) whether assets have been acquired with the loan funds, 2) whether the assets acquired using the loan have been pledged as collateral for the loan, 3) whether the collateral is comprehensive, 4) whether the loan capital or the assets acquired with it have been made available to the debtor, and 5) whether the repayment of the loan is handled using funds originating from the debtor. In most situations, the third party has a financial risk of repaying the loan, but depending on the circumstances of each case, this risk may not be such a strong indication of the actual right that it would prevent the property from being attached.
