Facts
X. AG is a joint-stock company with a share capital of CHF 150,000, which is held 50% each by the two shareholders A.X. and B. The Commercial Register Office of the Canton of St. Gallen informed the President of the Commercial Court that the company was missing the legally required auditor, and the deadline for restoring the lawful state had expired. Thereupon, A.X. applied for the dissolution of the company pursuant to Art. 731b para. 1 no. 3 CO, while B. applied for the appointment of an auditor pursuant to Art. 731b para. 1 no. 2 CO.Considerations
The Federal Supreme Court held that in the case of an organizational defect such as the lack of an auditor, which is due to a deadlock in the shareholder base, the appointment of the missing body by the judge pursuant to Art. 731b para. 1 no. 2 CO is the generally appropriate measure. The dissolution of the company under Art. 731b para. 1 no. 3 CO is only permissible as a last resort if milder measures do not lead to the goal. In…