Facts
The X. AG, a corporation headquartered in S. (Canton of Basel-Landschaft), was declared bankrupt by the District Court President K. as the bankruptcy judge on December 14, 2006 at 9:45 a.m. This occurred after the company, despite being requested by the Commercial Register Office, had not appointed a new auditor and had not paid the cost advance ordered for this purpose.
The X. AG filed a complaint against the bankruptcy decision with the Cantonal Court of Basel-Landschaft. On April 24, 2007, the court dismissed the complaint, as the company had not credibly demonstrated its solvency.
The X. AG appealed the cantonal decision to the Federal Supreme Court with a civil law appeal.
Considerations
The Federal Supreme Court states that the law provides for the judge to appoint an auditor for the company at the request of the Commercial Register Office if the company no longer has an auditor. However, the law does not regulate what is to happen if the company does not pay the cost advance ordered for this purpose.
The Federal Supreme Court considers this gap in the law to be a genuine gap that needs to be filled. In this context, it must be taken into account that the legislator, as part of a partial revision of the Code of Obligations effective January 1, 2008, will create a new regulation whereby the judge can first…