Facts
The present case concerns the removal of liquidators of a joint-stock company by the judge. The plaintiff, C. SA in Liquidation, had filed an appeal against the defendant H. The defendant requested that the appeal not be admitted, as it was not a civil dispute, but an act of voluntary jurisdiction, against which no appeal was admissible.
The Federal Court first had to clarify whether the proceedings for the removal of liquidators constituted a civil dispute. According to established case law, a civil dispute exists when, in an adversarial procedure between two or more parties, the judge or another state adjudicatory authority makes a final decision on a claim under federal civil law.
In the present case, the company has a claim under federal civil law to have the liquidation carried out by liquidators appointed by itself. In the proceedings for the removal of a liquidator for good cause pursuant to Art. 741 para. 1 CO, the judge makes a final decision on the existence or non-existence of this claim. Therefore, this is a civil dispute within the meaning of Art. 46 OG.
Considerations
Furthermore, the Federal Court had to clarify whether the shareholder seeking the removal of the liquidators for good cause is obliged to submit a corresponding motion at the general meeting of the company in liquidation before appealing to the judge.
The Federal Court concluded that the shareholder is not obliged to proceed in this…