Facts

Parties:

  • Appellant: [A. GmbH] in liquidation, represented by attorney Felix Hollinger
  • Respondent: [B. AG]

Subject: Bankruptcy proceedings (service of summons to bankruptcy hearing)

Procedural history:

  • On August 17, 2020, [B. AG] requested the SocRA Cantonal Court to open bankruptcy proceedings against [A. GmbH] .
  • The bankruptcy hearing was scheduled for October 6, 2020, and notified to the parties on August 19, 2020.
  • Since no one appeared at the hearing, bankruptcy was opened on October 6, 2020.
  • [A. GmbH] complained that it had not received the notice and was unable to present its position.
  • The SocRA Cantonal Court dismissed the appeal on December 15, 2020.
  • [A. GmbH] filed an appeal with the Federal Supreme Court on January 15, 2021.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal and found that the appellant, as the debtor, was particularly affected by the challenged decision and therefore entitled to appeal. The appeal is directed against the opening of bankruptcy proceedings and the notice of the bankruptcy hearing.

The core of the decision was the question of whether the notice of the bankruptcy hearing was properly served. Pursuant to Art. 168 DEBA, the parties must be informed of the court hearing at least three days in advance. The notice must be served on the parties before its execution to ensure the right to be heard. The burden of proof for proper service lies with the court.

In the present case, the notice was served by registered mail, but the signature on the proof of service was illegible and noted as "Corona iV". The lower court assumed that the…