Facts

In debt enforcement proceedings, the debtor Y. filed an objection to the debt enforcement on the grounds that he had not acquired any new assets. The debt enforcement office forwarded the objection to the District Court of Münchwilen in accordance with Art. 265a(1) DEBA. The District Court then ordered the creditor X. AG to pay an advance on costs in order to decide on the objection. X. AG filed a complaint against this order. The High Court of the Canton of Thurgau dismissed the complaint and confirmed that in proceedings under Art. 265a(1) DEBA, the creditor is obliged to bear the costs. X. AG then filed a civil law appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court concluded that, contrary to the view of the lower courts, in proceedings under Art. 265a(1) DEBA, the debtor, and not the creditor, is to be considered the claimant party and therefore the advance on costs must be paid by the debtor. The Federal Supreme Court justified this as follows:
  • The wording of Art. 265a(1) DEBA does not clearly assign the party roles.
  • The comparison with the objection proceedings in bill of exchange debt enforcement (Art. 179 et seq. DEBA) suggests that here too the debtor appears as the claimant, as he requests the court to grant the objection.
  • The decisive factor is that the proceedings under Art. 265a(1) DEBA are not about the initiation of debt enforcement, but…