Facts
The Cantonal Bank X. filed a lawsuit against Y. GmbH to recover 2 million francs plus interest. The claim was based on a Paulian avoidance action under Art. 285 et seq. DEBA and a tort claim for damages under Art. 41 CO. The Cantonal Bank X. had joined these claims as a creditor in the bankruptcy of C. AG in liquidation.
The Commercial Court dismissed the claim, as it was not competent to assess the Paulian avoidance action. The tort claim for damages was also dismissed, as the criminal offenses under the Debt Enforcement and Bankruptcy Act (Art. 163 et seq. SCC) do not constitute protective norms within the meaning of Art. 41 para. 1 CO.
Considerations
The Federal Supreme Court upheld the decision of the Commercial Court. According to the case law in BGE 140 III 355, the Commercial Courts are not competent for debt enforcement claims with a reflex effect on substantive law, such as the Paulian avoidance action. The avoidance action serves to recover assets into the enforcement proceedings and has purely debt enforcement effects, without affecting the civil law validity requirement. Therefore, it must be assigned to the ordinary courts.
The tort claim for damages was also rightly dismissed. The criminal offenses under Art. 163 et seq. SCC do serve to…