Erstatningsrettens muligheder og begrænsninger i lyset af retsopgøret efter den finansielle krise i Danmark

The article explores the preventive role of tort law in cases of managerial liability within banking law. It addresses two central research questions: (1) How can a revised liability model be developed that captures the range of managerial decisions and their related liability in banks? And (2) How can managerial duties from financial regulation be incorporated into and clarify this liability model? These questions are investigated through a legal-dogmatic analysis of tort, company, and banking law. The article identifies a key issue: in practice, management is only held liable for gross managerial failures at the strategic level, even though the liability rule in company law also covers simple negligence. It then illustrates how financial regulation not only establishes standards for management’s strategic, organizational, and operational decisions but also defines how these decisions are connected across the organization. Consequently, financial regulation provides an integrated framework for courts’ assessment of liability, restricting the scope of the business judgement rule. Ultimately, this leads to a situation where the management of the bank has a greater economic incentive to comply with financial regulation, while the preventive objectives of banking law also assume a more dominant role in tort law.