Facts
The District Court of Aarau opened bankruptcy proceedings against P. S. upon the application of P. S. based on his declaration of insolvency. The municipal authority of Kölliken, a creditor, appealed this decision to the High Court of the Canton of Aargau. However, the High Court did not enter into the appeal, as it did not consider the municipality of Kölliken as a creditor to be legitimized to challenge the opening of bankruptcy proceedings based on the debtor's declaration of insolvency.
The municipal authority of Kölliken filed a constitutional appeal against the decision of the High Court for violation of Art. 4 of the Federal Constitution.
Considerations
The Federal Supreme Court dismisses the appeal. It considers the reasoning of the High Court, according to which the creditors are not legitimized in the proceedings under Art. 191 of the Debt Enforcement and Bankruptcy Act (SchKG) to challenge the opening of bankruptcy proceedings based on the debtor's declaration of insolvency, as at least not arbitrary.
The Federal Supreme Court explains that the opening of bankruptcy proceedings based on a declaration of insolvency is made on the unilateral application of the debtor and the creditors are not heard by the bankruptcy judge. Under these circumstances, it is reasonable to consider the creditors not legitimized to appeal the bankruptcy decree.
While the view of the High Court could lead to the opening of a bankruptcy based on an apparently abusive declaration of insolvency, as the bankruptcy judge can hardly recognize an abuse of rights without the participation of the creditors, the Federal Supreme Court does not see this as a compelling reason to extend the legitimacy to appeal to the creditors. If the legislator had wanted this, it would have organized the first instance proceedings differently.
The Federal Supreme Court also…