Facts
The [A. AG] , a stock corporation with its seat in [U.] , Canton of Appenzell Ausserrhoden, was requested by the Commercial Register of Appenzell Ausserrhoden to appoint an auditor, after the previous auditor withdrew from the Commercial Register. The request was addressed to the registered domicile of [A. AG] and sent to the sole member of the board of directors as a copy. [A. AG] then held an extraordinary general meeting and elected a new auditor, which was not registered in the Commercial Register.
The Cantonal Court of Appenzell Ausserrhoden ordered [A. AG] to remedy the organizational defect and threatened to dissolve the company. The ruling was sent by registered mail to the registered domicile of [A. AG] , but was returned by the post office because the company had moved and the forwarding period had expired. The Cantonal Court then published the order to remedy the organizational defect in the Official Gazette of the Canton of Appenzell Ausserrhoden.
[A. AG] only learned of the judicial organizational defect proceedings through the publication of the preliminary bankruptcy notice in the Swiss Official Gazette of Commerce and subsequently requested the reinstatement of the deadline for registering the auditor. The Court of Appeal of Appenzell Ausserrhoden dismissed the request, and [A. AG] appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court examined whether the conditions for service by public notice under Art. 141 CPC in organizational defect proceedings were met. It found that the Cantonal Court had not conducted any meaningful address investigations before the public notice, although the post office noted that the addressee had moved and the forwarding order had expired.
The Federal Supreme Court found that the conditions for public notice under Art. 141 para. 1 CPC were…