Facts
On May 25, 2007, Z. AG filed a lawsuit with the Cantonal Court of Zug against X. AG and demanded payment of CHF 37,448.10 plus interest. On February 8, 2008, the single judge of the Cantonal Court of Zug, based on the corresponding request of Z. AG and pursuant to Art. 190 para. 1 no. 1 of the Federal Debt Enforcement and Bankruptcy Act (SchKG), opened bankruptcy proceedings against X. AG without prior debt collection. X. AG appealed against the opening of bankruptcy proceedings to the Justice Commission of the High Court of the Canton of Zug on February 21, 2008 and, based on Art. 194 para. 1 in conjunction with Art. 174 para. 2 no. 2 SchKG, requested the revocation of the opening of bankruptcy.
X. AG (hereinafter the appellant) filed an appeal in civil matters with the Federal Supreme Court on April 29, 2008. It alleges a violation of Art. 174 para. 2 no. 2 SchKG and requests the revocation of the High Court's judgment and the opening of bankruptcy.
Considerations
The Federal Supreme Court states that the deposit pursuant to Art. 174 para. 2 no. 2 SchKG is to be understood as a "deposit as performance". In the case of ordinary bankruptcy proceedings with prior initiation proceedings, the debtor has no legitimate and worthy interest in making the release of the deposited claim amount dependent on the outcome of a further process.
However, the situation is different in the special case of the opening of bankruptcy without prior debt collection pursuant to Art. 190 SchKG. In this case, the debtor exceptionally has a legitimate interest in making the release of the…