Rejection of the opening of bankruptcy without prior enforcement proceedings for fraudulent acts of the debtor

Facts

X. operates a butcher's shop in St. Gallen. On November 12, 1970, he was caught stealing meat products from the storage premises of the company Ernst Sutter AG in Teufen and immediately arrested. He admitted to regularly stealing, together with another perpetrator, meat products worth approximately 20,000 francs from Ernst Sutter AG and approximately 30,000 francs from Frigaliment in St. Margrethen, which he then resold in his butcher's shop.

The company Ernst Sutter AG requested the opening of X.'s bankruptcy without prior enforcement proceedings under Art. 190 para. 1 no. 1 DEBA, due to the thefts committed to its detriment. The sole bankruptcy judge of the District Court of St. Gallen granted this request and opened X.'s bankruptcy on December 3, 1970, on the grounds that he had become a dishonest debtor of the company Ernst Sutter AG within the meaning of Art. 190 para. 1 no. 1 DEBA due to the thefts.

The appeals judge in enforcement and bankruptcy matters of the Cantonal Court of St. Gallen dismissed the appeal against this decision on January 19, 1971. He justified his decision by considering that X. had indeed committed fraudulent acts within the meaning of Art. 190 para. 1 no. 1 DEBA, not by the thefts committed to the detriment of the creditor Ernst Sutter AG, but by the resale of the stolen goods.

X. filed a public law appeal for violation of Art. 4 Cst. due to an arbitrary interpretation of Art. 190 DEBA, requesting the annulment of the appeals judge's decision of January 19, 1971, and the rejection of the request for the opening of bankruptcy.

Considerations

According to Art. 190 para. 1 no. 1 DEBA, bankruptcy may be opened without prior enforcement proceedings, in particular against any "debtor" who has committed or attempted to commit "fraudulent acts to the detriment of his creditors". From the wording of this provision, it follows that the debtor must already be the debtor of the person harmed by the fraudulent act before the commission of the act, so that the conditions for an immediate opening of bankruptcy are not met if the debt relationship only arose as a result of the fraudulent act.

Even if the thefts committed over at least one year were considered as a plurality of distinct fraudulent acts and the appellant had already become a debtor of the company Ernst Sutter AG upon the commission of the first theft under…