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BGE 35 I 212 ΓÇó Suspensive effect on debt-enforcement complaint is not denial of justice
BGE 35 I 212Federal Supreme Court Official Reports (BGE) / Band IJan 19, 1909Dismissed
The Bern mortgage bank complained to the Federal Court that the cantonal supervisory authority repeatedly granted suspensive effect to Ulrich Studer’s enforcement complaints, thereby delaying three mortgage-enforcement proceedings. The Federal Court held that this did not amount to denial or delay of justice. Granting suspensive effect is a lawful procedural measure within the supervisory authority’s discretion, and the creditor’s right to enforcement exists only subject to the debtor’s complaint rights and the time required for the complaint procedure. The complaint was dismissed.
Art. 19 SchKG, Art. 36 SchKG; granting suspensive effect to a debtor’s complaint does not constitute denial of justice or delay of justice toward the creditor. The supervisory authority’s decision to stay enforcement pending complaint review is a procedural measure entrusted to its discretion as a case-managing authority. The creditor has no unconditional right to immediate continuation of enforcement, but only a right to enforcement subject to the debtor’s statutory complaint remedy and the duration of that remedy (consid. 1).