Facts
X. was the chairman of the board of directors with individual signature authority of company M. AG, which was struck off the commercial register in March 1984 after the bankruptcy proceedings were suspended due to lack of assets. Ms. Z., as a creditor of the company, requested the re-registration of M. AG in the commercial register, claiming that the company still had unrealized assets, namely six ceramic machines in Germany, at the time the bankruptcy was suspended. Ms. Z. also asserted liability claims against the chairman of the board of directors for indirect damage.Considerations
According to established case law, a creditor requesting the re-registration of a public limited company only needs to make the conditions for such re-registration and the existence of their claim plausible, as it is the responsibility of the court and not the commercial register authorities to make a final decision on these matters. The register authorities can only refuse the creditor a trial against the company if they can assert their claims through another means that is also required of them.
In the present case, although the ceramic machines no longer constitute undistributed assets of M. AG, as acknowledged by the Department of Justice, Ms. Z. has asserted, in addition to her claim, liability claims within the meaning of Art. 755 et seq. CO. The Federal Court considers that Ms. Z. can invoke Art. 756 para. 2 CO,…