Commercial register auditing power
For a new entry the registrar must consider if the legal conditions are met (Art. 940 para. 1 OR). In practice, however, the register cannot check every fact fully. The audit authority is divided into register and substantive requirements.
Formal and register legal requirements
Register right refers to the provisions of the Commercial Register Regulation (HRegV), which apply to all commercial register and the cantonal provisions of the registry offices. The registration must be refused by the Trade Register Office, if a formal or register legal prerequisite is missing. The commercial register has full cognition in the examination of those conditions. Following examples can be mentioned:
- The referenced commercial register office is locally not responsible.
- It lacks statutory required documents, or these supporting documents are faulty. The HRegV contains checklists, in which all the documents required are listed (founding a GmbH in Art. 71 HRegV).
- The registration is not possible, for example: the recording of a simple society.
- The notifying person is not entitled to make the application. The individual company must be registered by its owner (Art. 17 para. 1 lit. a HRegV).
Substantive Requirements
Substantive laws are understood in this context as provisions of the Code of Obligations (German Obligationenrecht). Here is the review authority is limited to the range of uniquely compelling law (see MEIER-HAYOZ / FORSTMOSER: Swiss company law, 2012, p. 161). The commercial register can therefore refuse entries only if they are clearly and unambiguously illegal. Is it not unambiguous, the entry must be completed and the matter given to the court for decision.
The trade register must contain the entire contents of an AG statutes check (Art. 940 para. 2 CO). If the statues obviously violate mandatory law, they must be rejected from the commercial register. However, there is doubt whether a statutory provision is lawful or not, there is a compulsion for entry.
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