Facts
The case concerns a joint-stock company that was dissolved by the Commercial Register Office of the Canton of Solothurn due to an organizational defect. The company later applied for the revocation of the dissolution decision, as the defect had since been remedied and all creditors' claims had been settled. The lower court dismissed the application, as a dissolution decision issued under Art. 731b(1)(3) CO cannot be revoked.
The Federal Supreme Court upheld the lower court's decision. It stated that neither the law nor the case law provides for the possibility to revoke such a dissolution decision. While some authors advocate an analogous application of Art. 195 DEBA if the organizational defect has been remedied and the requirements of Art. 195 DEBA are met, the Federal Supreme Court saw no room for this, as the legislator had apparently tacitly excluded the subsequent revocability of the dissolution decision.
The Federal Supreme Court justified its decision by stating that the organizational defect procedure under Art. 731b CO is a contentious procedure with a standard of proof and full cognition of the court. Summary decisions in such proceedings are therefore formally res judicata and thus irrevocable, except within the framework of a revision under Art. 328 et seq. CPC.
Considerations
The Federal Supreme Court concluded that the res judicata dissolution decision under Art. 731b(1)(3) CO cannot be revoked based on Art. 195 DEBA. The court did not see a legal gap that would justify an analogous application of Art. 195 DEBA.
Rather, the irrevocability of the dissolution decision…