Facts
J. [Z.] was the owner of the sole proprietorship KIBA J. [Z.] registered in the commercial register. On August 19, 1994, the deregistration of the sole proprietorship was published in the Swiss Official Gazette of Commerce. On November 29, 1994, the District Court of Gaster granted J. [Z.] a composition agreement, which was declared ineffective on August 16, 1995. On September 27, 1995, the Spar- und Leihkasse Kaltbrunn requested the immediate opening of bankruptcy proceedings against J. [Z.], which was ordered on October 17, 1995 by the President of the District Court of Gaster. However, the single judge of the Cantonal Court of St. Gallen suspended the bankruptcy judgment on November 29, 1995 and referred the case back to the President of the District Court of Gaster as the lower cantonal supervisory authority for debt enforcement and bankruptcy. The latter declared J. [Z.] fit for bankruptcy on March 6, 1996. But the Cantonal Court of St. Gallen, as the higher cantonal supervisory authority for debt enforcement and bankruptcy, overturned this decision on April 29, 1996 and declared J. [Z.] unfit for bankruptcy.Considerations
According to Art. 40 para. 1 DEBA, persons registered in the commercial register remain subject to bankruptcy proceedings for six months after the publication of their deregistration. However, the Cantonal Court of St. Gallen considered that this six-month period applies absolutely and cannot be extended, even by a composition agreement. The appeal of the Spar- und Leihkasse Kaltbrunn against this decision was rejected.
Indeed, it is the responsibility of the creditors to…