Facts
The Swiss Social Partner Foundation for the Occupational Pension Scheme Guarantee Fund initiated debt collection proceedings against Jan Surovka with the debt collection office in Au for a claim of CHF 6,626.80 plus interest and costs. As Surovka did not file any objection, the debt collection proceedings were continued. On June 27, 1991, Surovka received the bankruptcy notice, whereupon the creditor applied for the opening of bankruptcy proceedings on August 27, 1991.
Surovka filed a complaint against the opening of bankruptcy proceedings, as the claim being pursued was a public law claim within the meaning of Art. 43 DEBA. However, the complaint was dismissed at all instances.
Considerations
According to established case law, for the application of Art. 43 DEBA, it must be cumulatively fulfilled that the claim has its legal basis in public law and the creditor is a public law institution.
In the present case, the claim being pursued is employer contributions under the BVG, which undoubtedly have a public law character. However, the creditor, the Swiss Social Partner Foundation for the Occupational Pension Scheme Guarantee Fund, is not a public law institution, but a private law foundation.
Furthermore, with regard to the…