Decision on the obligation to pay an advance on costs in summary proceedings after objection due to lack of new assets

Facts

In the debt enforcement proceedings of X. AG against Y., the debtor filed an objection on the grounds that he had not come into new assets. The debt collection office forwarded the objection to the district court, which ordered the creditor X. AG to pay an advance on costs of 900 CHF. X. AG then filed a complaint with the cantonal court, which was dismissed. X. AG then appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court concluded that, contrary to the view of the lower courts, it is not the creditor X. AG, but the debtor Y. who is to be considered the claimant party and must therefore pay the advance on costs. This follows from the nature and purpose of the proceedings under Art. 265a para. 1 DEBA, in which the existence of new assets is to be determined and the debtor takes the initiative by filing the objection on the grounds of the lack of new assets.

The Federal Supreme Court explains that in these proceedings, the debtor takes on the role of the claimant, as he invokes the judge by filing the justified objection and requests…