Ordinance of the High Court concerning the Management of Bankruptcy Offices (Cantonal Ordinance on Bankruptcy)

I. Duties

In addition to further duties assigned to it by law or by an authority empowered by law, the notary's office is responsible for the duties of the bankruptcy office (§ 1 NotG³; § 2 EG SchKG⁵).

1. The bankruptcy office is responsible for the duties of the administrator in a composition agreement in bankruptcy (Art. 332 SchKG7), unless the creditors in the composition have appointed an extra-official bankruptcy administration.

2. The judge may appoint the competent bankruptcy office as administrator in a composition agreement outside of bankruptcy (Art. 295 SchKG7).

3. Conciliation Hearing

**in Bankruptcy**

The conciliation hearing within the meaning of Art. 73e DEBA will be conducted by the bankruptcy office in the case of realization in bankruptcy.

11 The conduct of public auctions in a 4. Public

bankruptcy proceedings where an extra-official bankruptcy administration has been appointed, as well as in a composition agreement with assignment of assets, can be transferred to the bankruptcy office.

5. Auction of a Co-ownership Share

The bankruptcy office is responsible for the auction of a co-ownership share in real estate upon court order within the meaning of Art. 649b para. 3 of the Swiss Civil Code (ZGB) and Art. 78a of the Ordinance on the Realization of Immovable Property (VZG).

The Administrative Commission of the High Court, by way of a general

decision concerning bankruptcy petitions (Art. 169 para. 2 of the DEBA7) opening

and declarations of insolvency (Art. 191 in conjunction with Art. 194 para. 1 and 169

para. 2 of the DEBA7), sets the cost advance to be paid.

1. Cost

advance

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Cantonal Bankruptcy Ordinance

2. Public

notices

3. Communications

III. Notification to

the criminal

prosecution

authorities

The public announcements are generally also to be published in a local publication organ distributed at the domicile or seat of the debtor (Art. 35 SchKG7).

1 The bankruptcy office must report the opening of bankruptcy proceedings and the conclusion of the bankruptcy proceedings to

a. the debt enforcement office,

b. the Directorate for Social Affairs and Security, if the debtor works independently or dependently as a business agent, real estate agent, or private detective (§ 7 of the Act on Business Agents, Real Estate Agents, and Private Detectives, LS 935.41),

c.

d. the Federal Institute of Intellectual Property, if a registered trademark belongs to the bankruptcy estate (Art. 40 para. 3 lit. g MSchV, SR 232.111).

2 In bankruptcy proceedings concerning debtors subject to bankruptcy enforcement, the bankruptcy office shall notify the Commercial Register Office of the following

a.

b. the discontinuation of the proceedings due to lack of assets, indicating whether the proceedings will be carried out on the basis of an advance on costs paid by a creditor, or

whether assets belonging to the bankruptcy estate and encumbered with pledges have been found, and a secured creditor has requested liquidation according to Art. 230a para. 2 SchKG7,

c. the conclusion of special liquidation proceedings according to Art. 230a para. 2 SchKG7 or liquidation according to Art. 230a para. 3 or 4 SchKG7.

14 1 The bankruptcy officials are obliged to report in writing any

criminal offences, particularly crimes and misdemeanours within the meaning of Articles 163–170

of the Swiss Criminal Code (SCC)10 and contraventions within the meaning of

Articles 323–325 SCC10, which come to their knowledge in the course of their official duties,

enclosing the necessary evidence (§ 167 GOG2).

2 If the bankruptcy official has indications of the existence of criminal offences,

he must submit these to the locally competent public prosecutor's office for preliminary examination

before making a formal report.

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Cantonal Bankruptcy Ordinance

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Is the Bankruptcy Administrator Disqualified Only Due to Individual Creditors in IV. Disqualification

If the bankruptcy administrator is disqualified only in relation to individual creditors, the substitute bankruptcy office (§ 3 para. 1 NotG³) shall exercise the substitute representation only with regard to these creditors.

1. In Relation to

Individual Claims

12

11 When receiving and executing a land register application 3. As an employee

concerning the pre-notation of a restriction on disposal or of the Land

concerning the award of a property, no disqualification is to be observed. Registry Office

The extended powers in bankruptcy proceedings under § 15 V. Extended

NotG³ specifically include

Powers of

Employees of the

a. the recording and maintenance of the bankruptcy inventory as well as the securing of bankruptcy assets, Bankruptcy Office

b. the issuance of legal assistance orders in connection with

bankruptcy assets,

c. the examination of the debtor regarding the bankruptcy assets,

d. the decision on the segregation of attachable assets and

their release, with the exception of signing the examination

in appeal proceedings,

e. the collection of receivables, with the exception of procedural acts, the

filing of applications with creditors and the assignment of rights within the meaning

of Art. 260 SchKG7,

f. the execution of forced auctions, with the exception of the

forced auction of real estate.

VI. EDP-Programs

Bankruptcy proceedings must be carried out using the EDP programs provided to the notaries by the Notary Inspectorate (Art. 12 KOV8).

VII. Transfer of Office

1 The transfer of office (Art. 7 KOV) takes place in accordance with the provisions of the Notary Ordinance4.

2 To the protocol concerning the act of transfer (§ 87 NotV4), a list of pending proceedings must be appended.

The Notary Inspectorate exercises direct supervision over the extra-official bankruptcy administrations.

VIII. Extra-official Bankruptcy Administration

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Cantonal Bankruptcy Ordinance

IX. Valuables

Valuables, deposits, and sureties that can no longer be returned must be reported to the supervisory authority (District Court) and, together with deposits and sureties of the court registry that can no longer be returned, must be advertised by the supervisory authority for collection within a specified period, with the threat that they will be auctioned off and their equivalent value appropriated by the state treasury.

X. Undeliverable Monies

1 Undeliverable proceeds are to be deposited with the depositary office, stating the entitled creditor.

2 After a period of ten years, the proceeds in the sense of

With the entry into force of this Ordinance, the Ordinance of September 1, 1947, concerning the Debt Enforcement and Bankruptcy Offices and their judicial supervision, the municipal bailiffs and the livestock inspectors, as well as the Instruction of the High Court of February 11, 1952, regarding the SchKG7, and all circulars of the High Court and the Administrative Commission concerning bankruptcy matters are repealed, with the exception of

a. Circular of May 13, 1974, on bankruptcy office accounting (KS 101),

b. Circular of February 8, 1978, on the handling of toxic substances and foodstuffs in bankruptcy and debt enforcement proceedings (KS 138),

c. Circular of August 23, 1978, on the inadmissibility of conducting auctions in bankruptcy proceedings (KS 148),

d. Circular of December 16, 1986, on the retention of business books and business papers (KS 222) with subsequent amendments thereto,

e. Circular of January 19, 1988, on New Matrimonial Law and Bankruptcy (KS 233),

f. Circular of January 9, 1995, on the treatment of withholding tax for foreign employees in the employer's bankruptcy (KS 295),

g. Circular of May 16, 1997, on down payments by bank cheque for the auction of real estate (KS 312).

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Cantonal Bankruptcy Ordinance

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XII. Entry into Force

***

1 OS 55, 55.

2 LS 211.1.

3 LS 242.

4 LS 242.2.

5 LS 281.

6 SR 210.

7 SR 281.1.

8 SR 281.32.

9 SR 281.42.

10 SR 311.0.

11 Text as per decision of the High Court of 23 June 2004 (OS 59, 167). In force

since 1 July 2004.

12 Repealed by decision of the High Court of 23 June 2004 (OS 59, 167). In

force since 1 July 2004.

13 Currently: Department of Security (OS 61, 112).

14 Text as per decision of the High Court of 3 November 2010 (OS 65, 867; ABI

2010, 2525). In force since 1 January 2011.

15 Repealed by decision of the High Court of 3 November 2010 (OS 65, 867;

ABI 2010, 2525). In force since 1 January 2011.

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Abs. 1 SchKG7 to be distributed (Art. 269 Abs. 2 SchKG7).

3 If an undeliverable dividend is so small that it would be consumed by the costs arising from the subsequent distribution, proceed according to § 17.

XI. Repeal of Previous Enactments