Facts
In April 1972, the German national Hanns Maier, together with two Swiss citizens, founded the corporation Wohnbau AG Giswil with its registered office in Giswil. However, the Swiss majority shareholder was merely a trustee for Maier or his son. By judgment of March 5, 1981, the Federal Supreme Court declared the acquisition of a property by Wohnbau AG Giswil as null and void, as the company was financially controlled by Maier and thus foreign-controlled at the time of the acquisition.
On January 19, 1982, the Canton of Obwalden filed a lawsuit with the Cantonal Court of Obwalden, requesting the declaration of the nullity of Wohnbau AG Giswil, the order of its liquidation, and the allocation of the liquidation proceeds to the Canton of Obwalden. The Cantonal Court upheld the claim on November 2, 1984. Wohnbau AG Giswil appealed against this judgment, which was dismissed by the High Court of the Canton of Obwalden on April 15, 1985.
With an appeal dated June 4, 1985, Wohnbau AG Giswil challenges the judgment of the High Court of the Canton of Obwalden before the Federal Supreme Court.
Considerations
The Federal Supreme Court first notes that the claim for the declaration of the nullity of the defendant is of a personal nature and serves to enforce public order. Therefore, pursuant to Art. 44 para. 1 OG, the appeal must be heard without consideration of the expected liquidation proceeds.
Furthermore, the Federal Supreme Court states that Art. 57 ZGB applies to all legal entities, including corporations. It is irrelevant whether the unlawful purpose existed from the outset or arose over time. The Federal Supreme Court adheres to its previous case law, according to which a corporation with an unlawful purpose must be dissolved, and its assets shall accrue to the competent public authority pursuant to Art. 57 para. 3 ZGB.
The Federal Supreme Court also rejects the defendant's arguments that…