Facts
The pension fund [A.] (the appellant) was affiliated with the insolvent company [C. GmbH] . In the bankruptcy proceedings of the sole shareholder and managing director [B.] (the opposing party), [A.] filed a claim for CHF 27,736.45 as damages for unpaid BVG premiums. [B.] disputed this claim. The District Court confirmed the composition agreement, in which [B.] undertook to pay the privileged claims at 100%, while the creditors of the 3rd class were granted a dividend of 10%.
[A.] filed a lawsuit for recognition of its claim as a privileged claim of the 1st class and requested the deposit of the amount until the final resolution of the proceedings. The District Court dismissed the deposit application. [A.] appealed against this decision to the High Court, which was also dismissed.
Considerations
The Federal Court notes that the decision on the deposit application under Art. 315 para. 2 DEBA is made by the bankruptcy court in summary proceedings, not the court dealing with the main matter (the claim for recognition of the disputed claim). The decision on the deposit application is a precautionary measure and is therefore subject to an appeal in civil matters.
The Federal Court examines whether the High Court has applied the law arbitrarily by denying the…