Dismissal of the Appeal against the Opening of Bankruptcy Proceedings based on the Debtor's Declaration of Insolvency

Facts

By order dated 24 February 1997, the District Court Presidency G. opened bankruptcy proceedings over K. based on his declaration of insolvency. The creditors E. S. and R. S. filed legal remedies under Art. 174 para. 1 DEBA to restore the deadline for submission, to revoke the contested order and to obtain suspensive effect. The High Court of the Canton of Aargau did not enter into the legal remedy. The constitutional appeal filed by the creditors against this remained unsuccessful.

Considerations

The Federal Court confirmed the case law according to which creditors are not legitimized to further appeal the bankruptcy decision in the case of the opening of bankruptcy proceedings based on the debtor's declaration of insolvency. This also applies under the new law. The Federal Court stated the following:

From the wording of Art. 174 para. 1 new DEBA, which only grants the parties to the first instance proceedings the legitimacy to further appeal, a qualified silence of the legislator can be derived, not wanting to grant this legitimacy to creditors not involved in the bankruptcy proceedings. Further reasons for this are that the debtor with the declaration of insolvency can no longer "effect" but only "apply for"…