Bundesgericht
Tribunal fédéral
Tribunale federale
Tribunal federal

4A 223/2019

Urteil vom 16. Oktober 2019

I. zivilrechtliche Abteilung

Besetzung
Bundesrichterin Kiss, Präsidentin,
Bundesrichterinnen Klett, Hohl, Niquille, May Canellas,
Gerichtsschreiber Brugger.

Verfahrensbeteiligte
A.________,
vertreten durch Rechtsanwälte Kilian Perroulaz und Dr. Manuel Meyer,
Beschwerdeführer,

gegen

B.________ AG,
vertreten durch Rechtsanwälte Dr. Manfred Küng und Friedrich Müller,
Beschwerdegegnerin.

Gegenstand
Aktienrecht, Sonderprüfung,

Beschwerde gegen die Verfügung des Handelsgerichts des Kantons Zürich, Einzelgericht, vom 16. April 2019 (HE180179-O).

Sachverhalt:

A.

A.a. A.________ (Kläger, Beschwerdeführer) ersuchte mit Gesuch vom 22. September 2017 am Handelsgericht Zürich um Einsetzung eines Sonderprüfers bei der B.________ AG (Beklagte, Beschwerdegegnerin). Mit Urteil vom 22. Februar 2018 hiess das Handelsgericht das Begehren in Bezug auf einzelne Sachverhalte gut und setzte in der Folge einen Sonderprüfer ein. Am 10. Januar 2019 legte dieser seinen Bericht vor. Mit Verfügung vom 15. Januar 2019 setzte das Handelsgericht der Beklagten Frist an, um allfällige Einwendungen in Bezug auf geheimhaltungswürdige Stellen im Sinne von Art. 697e Abs. 2
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR gegen den Sonderprüfungsbericht vorzubringen. Die von der Beklagten vorgebrachten Begehren wies das Handelsgericht mit Verfügung vom 31. Januar 2019 ab. Nach Durchführung des Bereinigungsverfahrens stellte das Handelsgericht am 20. März 2019 dem Kläger den Bericht zu.
Mit Verfügung vom 16. April 2019 erwog das Handelsgericht, dass das Verfahren mit der Zustellung des Sonderprüfungsberichts seinen Abschluss finde und schrieb das Verfahren nach Art. 242
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
ZPO ab (Dispositivziffer 1). Es setzte die Gerichtskosten und die Kosten des Sonderprüfers fest (Dispositivziffer 2), auferlegte die Gerichtskosten der Beklagten (Dispositivziffer 3) und verpflichtete die Beklagte, dem Kläger eine Parteientschädigung zu zahlen (Dispositivziffer 4).

A.b. Am 18. April 2019 beantragte der Kläger am Handelsgericht, die Abschreibungsverfügung vom 16. April 2019 sei in Wiedererwägung zu ziehen. Den Parteien sei unter anderem Gelegenheit zu geben, zum Bericht des Sonderprüfers Stellung zu nehmen und Ergänzungsfragen zu stellen. Mit Verfügung vom 14. Mai 2019 trat das Handelsgericht auf das Begehren nicht ein.

B.
Gegen die Abschreibungsverfügung vom 16. April 2019 erhob der Beschwerdeführer Beschwerde in Zivilsachen an das Bundesgericht. Er beantragte, die Dispositivziffer 1 des vorinstanzlichen Entscheids sei aufzuheben und die Sache sei zur Wiederaufnahme des Verfahrens an die Vorinstanz zurückzuweisen. Gleichzeitig ersuchte er, es sei der Beschwerde die aufschiebende Wirkung zu erteilen.

Die Vorinstanz verzichtete auf Vernehmlassung. Die Beschwerdegegnerin begehrte, sie sei aus dem Rubrum zu streichen. Sie wolle an diesem Verfahren nicht teilnehmen und keine Parteistellung ausüben.
Mit Präsidialverfügung vom 13. Juni 2019 wurde das Gesuch des Beschwerdeführers als solches um vorsorgliche Massnahmen entgegen genommen. Die Abteilungspräsidentin wies das Handelsgericht an (vorab superprovisorisch), bis zum Abschluss des bundesgerichtlichen Verfahrens von einer Wiederaufnahme des parallel laufenden Prozesses betreffend Forderung aus aktienrechtlicher Verantwortlichkeit abzusehen. Sodann wies sie den Antrag der Beschwerdegegnerin ab, sie sei aus dem Rubrum zu streichen.

Erwägungen:

1.
Die Vorinstanz erwog im angefochtenen Entscheid, dass das Verfahren mit der Zustellung des Sonderprüfungsberichts seinen Abschluss finde und es daher nach Art. 242
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
ZPO abgeschrieben werde. Mit dieser Abschreibungsverfügung wurde das Verfahren um Sonderprüfung vor der Vorinstanz abgeschlossen. Es liegt damit ein Endentscheid im Sinne von Art. 90
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
BGG vor, der das Verfahren vor der Vorinstanz beendet. Im Gegensatz zum Abschreibungsentscheid nach Vergleich, Klageanerkennung oder Klagerückzug (Art. 241
CPC Art. 241 Settlement, acceptance, withdrawal SR 272 Swiss Civil Procedure Code - Civil Procedure Code
1    If notice of a settlement, acceptance of the claim or withdrawal of the action is placed on record in court, the parties must sign the record.
2    A settlement, acceptance of the claim or withdrawal of the action has the same effect as a binding decision.
3    The court shall dismiss the proceedings.
ZPO) kann die vorliegende Abschreibungsverfügung nach Art. 242
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
ZPO mit der Beschwerde in Zivilsachen angefochten werden (vgl. Urteile 4A 249/2018 vom 12. Juli 2018 E. 1.1; 5A 838/2015 vom 5. Oktober 2016 E. 1.1, nicht publ. 142 III 738).
Da auch die übrigen Sachurteilsvoraussetzungen erfüllt sind, ist - unter Vorbehalt gehöriger Begründung (Art. 42 Abs. 2
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
und Art. 106 Abs. 2
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
BGG) - auf die Beschwerde einzutreten.

2.
Jeder Aktionär kann der Generalversammlung beantragen, bestimmte Sachverhalte durch eine Sonderprüfung abklären zu lassen, sofern dies zur Ausübung der Aktionärsrechte erforderlich ist und er das Recht auf Auskunft oder das Recht auf Einsicht bereits ausgeübt hat (Art. 697a Abs. 1
0 Art. 697a J. Personal membership rights / V. Right to instigate a special audit / 1. With approval of the general meeting - V. Right to instigate a special audit 1. With approval of the general meeting SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    Any shareholder may request the general meeting to have specific matters clarified by means of a special audit, where this is necessary for the proper exercise of shareholders' rights and he has already exercised his right to information and inspection.
2    Where the general meeting adopts the motion, the company or any shareholder may apply to the court within 30 days for appointment of a special auditor.
OR). Entspricht die Generalversammlung dem Antrag, so kann die Gesellschaft oder jeder Aktionär innert 30 Tagen den Richter um Einsetzung eines Sonderprüfers ersuchen (Art. 697a Abs. 2
0 Art. 697a J. Personal membership rights / V. Right to instigate a special audit / 1. With approval of the general meeting - V. Right to instigate a special audit 1. With approval of the general meeting SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    Any shareholder may request the general meeting to have specific matters clarified by means of a special audit, where this is necessary for the proper exercise of shareholders' rights and he has already exercised his right to information and inspection.
2    Where the general meeting adopts the motion, the company or any shareholder may apply to the court within 30 days for appointment of a special auditor.
OR). Entspricht die Generalversammlung dem Antrag nicht, so können Aktionäre, die zusammen mindestens 10 Prozent des Aktienkapitals oder Aktien im Nennwert von 2 Millionen Franken vertreten, innert dreier Monate den Richter ersuchen, einen Sonderprüfer einzusetzen (Art. 697b Abs. 1
0 Art. 697b J. Personal membership rights / V. Right to instigate a special audit / 2. If motion rejected by the general meeting - 2. If motion rejected by the general meeting SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    Where the general meeting rejects the motion, shareholders together representing at least 10 per cent of the share capital or shares with a nominal value of 2 million francs may apply to the court within three months for the appointment of a special auditor.
2    The applicants are entitled to have a special auditor appointed where they make a prima facie case that the founder members or governing officers have violated the law or the articles of association and thereby harmed the company or the shareholders.
OR). Die Gesuchsteller haben Anspruch auf Einsetzung eines Sonderprüfers, wenn sie glaubhaft machen, dass Gründer oder Organe Gesetz oder Statuten verletzt und damit die Gesellschaft oder die Aktionäre geschädigt haben (Art. 697b Abs. 2
0 Art. 697b J. Personal membership rights / V. Right to instigate a special audit / 2. If motion rejected by the general meeting - 2. If motion rejected by the general meeting SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    Where the general meeting rejects the motion, shareholders together representing at least 10 per cent of the share capital or shares with a nominal value of 2 million francs may apply to the court within three months for the appointment of a special auditor.
2    The applicants are entitled to have a special auditor appointed where they make a prima facie case that the founder members or governing officers have violated the law or the articles of association and thereby harmed the company or the shareholders.
OR). Der Richter entscheidet nach Anhörung der Gesellschaft und des seinerzeitigen Antragstellers (Art. 697c Abs. 1
0 Art. 697c J. Personal membership rights / V. Right to instigate a special audit / 3. Appointment - 3. Appointment SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The court decides after hearing the company and the applicant.
2    If the court accepts the application, it entrusts an independent expert with the task of carrying out the audit. The court defines the scope of the audit based on the application.
3    The court may also entrust the special audit to several experts jointly.
OR).
Entspricht der Richter, wie vorliegend, dem Gesuch um Sonderprüfung, so beauftragt er einen unabhängigen Sachverständigen mit der Durchführung der Sonderprüfung (Art. 697c Abs. 2
0 Art. 697c J. Personal membership rights / V. Right to instigate a special audit / 3. Appointment - 3. Appointment SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The court decides after hearing the company and the applicant.
2    If the court accepts the application, it entrusts an independent expert with the task of carrying out the audit. The court defines the scope of the audit based on the application.
3    The court may also entrust the special audit to several experts jointly.
OR). Der Sonderprüfer berichtet einlässlich über das Ergebnis seiner Prüfung und legt dem Richter seinen Bericht vor (Art. 697e Abs. 1
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR). Dieser stellt den Bericht in der Folge der geprüften Gesellschaft zu. Wenn die Gesellschaft der Auffassung ist, dass Stellen des Sonderprüfungsberichts das Geschäftsgeheimnis oder andere schutzwürdige Interessen der Gesellschaft verletzten und deshalb den gesuchstellenden Aktionären nicht vorgelegt werden sollen, hat sie dies beim Richter zu beantragen. Der Richter entscheidet über dieses Begehren (Art. 697e Abs. 2
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR). Nach dem Bereinigungsverfahren gibt der Richter der Gesellschaft und den gesuchstellenden Aktionären nach Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR Gelegenheit, zum bereinigten Bericht des Sonderprüfers Stellung zu nehmen und Ergänzungsfragen zu stellen. Abschliessend unterbreitet der Verwaltungsrat der geprüften Gesellschaft die Stellungnahmen zusammen mit dem (allenfalls ergänzten) Sonderprüfungsbericht der nächsten Generalversammlung (Art. 697f Abs. 1
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
OR).

3.

3.1. Die Vorinstanz stellte den Sonderprüfungsbericht nach dem Bereinigungsverfahren dem Beschwerdeführer als Gesuchsteller um Sonderprüfung zu. Sie erwog anschliessend in ihrem kurzbegründeten Abschreibungsentscheid, dass der Sonderprüfungsbericht dem Beschwerdeführer am 20. März 2019 zugestellt und "den Parteien Gelegenheit gegeben wurde, zum Sonderprüfungsbericht Stellung zu nehmen und Ergänzungsfragen zu stellen (vgl. Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR), wovon keine der Parteien Gebrauch machte".

3.2. Dagegen bringt der Beschwerdeführer vor, der Bericht des Sonderprüfers sei ihm ohne Begleitschreiben oder Verfügung von der Vorinstanz zugestellt worden. Die Vorinstanz habe weder zu einer mündlichen Verhandlung vorgeladen, noch habe sie die Parteien zu einer schriftlichen Stellungnahme aufgefordert. Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR sehe aber ausdrücklich vor, dass der Richter den Parteien Gelegenheit geben müsse, zum Bericht des Sonderprüfers Stellung zu nehmen und Ergänzungsfragen zu stellen. Da es keine einheitliche Praxis gebe, ob diese Stellungnahme und allfällige Ergänzungsfragen mündlich oder schriftlich einzureichen seien, habe die Vorinstanz nicht davon ausgehen dürfen, dass die Parteien allfällige Ergänzungsfragen ohne Bestimmung des weiteren Verfahrensverlaufs und ohne Fristansetzung schriftlich einreichen würden. Durch die Abschreibung des Verfahrens, ohne dass ihm Gelegenheit zur Stellungnahme und Einreichung von Ergänzungsfragen gegeben worden sei, habe die Vorinstanz Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR und seinen Anspruch auf rechtliches Gehör nach Art. 53 Abs. 1
CPC Art. 53 Right to be heard SR 272 Swiss Civil Procedure Code - Civil Procedure Code
1    The parties have the right to be heard.
2    They have in particular the right to consult the case files and to obtain copies thereof provided this does not conflict with overriding public or private interests.
ZPO sowie Art. 29 Abs. 2
0 Art. 29 General procedural guarantees SR 101 Federal Constitution of the Swiss Confederation
1    Every person has the right to equal and fair treatment in judicial and administrative proceedings and to have their case decided within a reasonable time.
2    Each party to a case has the right to be heard.
3    Any person who does not have sufficient means has the right to free legal advice and assistance unless their case appears to have no prospect of success. If it is necessary in order to safeguard their rights, they also have the right to free legal representation in court.
BV verletzt.

3.3. Die Vorinstanz führt aus, die Parteien hätten keinen Gebrauch von der Möglichkeit gemacht, eine Stellungnahme zum Sonderprüfungsbericht einzureichen und Ergänzungsfragen dazu zu stellen (vgl. Erwägung 3.1). Dabei handelt es sich nicht um eine Feststellung zum Prozesssachverhalt, an welche das Bundesgericht gebunden wäre (Art. 105 Abs. 1
0 Art. 29 General procedural guarantees SR 101 Federal Constitution of the Swiss Confederation
1    Every person has the right to equal and fair treatment in judicial and administrative proceedings and to have their case decided within a reasonable time.
2    Each party to a case has the right to be heard.
3    Any person who does not have sufficient means has the right to free legal advice and assistance unless their case appears to have no prospect of success. If it is necessary in order to safeguard their rights, they also have the right to free legal representation in court.
BGG; BGE 140 III 16 E. 1.3.1 mit Hinweisen). Vielmehr unterstellt die Vorinstanz mit dieser Ausführung, dass sie ihren richterlichen Pflichten nach Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR durch das blosse Zustellen des Sonderprüfungsberichts nachgekommen sei. Ob dies zutrifft, ist vorliegend zu entscheiden.

4.

4.1. Strittig ist, ob der Richter nach Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR der geprüften Gesellschaft und den Gesuchstellern ausdrücklich Frist anzusetzen hat, eine Stellungnahme zum Bericht des Sonderprüfers einzureichen und Ergänzungsfragen dazu zu stellen, oder ob diese nach der Zustellung des Berichts ohne richterliche Aufforderung von sich aus eine Stellungnahme und Ergänzungsfragen einzureichen haben. Das Bundesgericht hatte bis anhin noch keine Gelegenheit, diese Frage zu klären.

4.2. In der Lehre wird auf Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR verwiesen und erklärt, dass der Richter den Parteien Gelegenheit zur Stellung von Ergänzungsfragen und zur Einreichung der Stellungnahme zu gewähren hat. Wie dies zu geschehen hat, wird allerdings in der Lehre nicht behandelt. Immerhin wird die von der Vorinstanz vertretene Auffassung, wonach die Gesellschaft und die Gesuchsteller die Stellungnahme und Ergänzungsfragen unaufgefordert einreichen müssen, - soweit ersichtlich - nirgends vertreten (vgl. Peter Böckli, Schweizer Aktienrecht, 4. Aufl. 2009, § 16 N. 72; Andreas Casutt, Die Sonderprüfung im künftigen schweizerischen Aktienrecht, 1991, § 14 Rz. 5 ff.; Peter Forstmoser / Arthur Meier-Hayoz / Peter Nobel, Schweizerisches Aktienrecht, 1996, § 35 N. 90; Fabrizio Gabrielli, Das Verhältnis des Rechts auf Auskunftserteilung zum Recht auf Einleitung einer Sonderprüfung, 1997, S. 137; Felix Horber, Die Informationsrechte des Aktionärs, 1995, Rz. 1245 ff.; Bianca Pauli Pedrazzini, Commentaire Romand, Code des obligations II, 2. Aufl. 2017, N. 13 zu Art. 697e
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR; dieselbe, Le droit au contrôle spécial dans la société anonyme, 2004, S. 172 f.; Urs Schenker, Die Sonderprüfung - ein schwieriges Instrument, GesKR 2019, S. 18 ff., S. 27 und S.
30; Hans Caspar von der Crone, Aktienrecht, 2014, § 8 Rz. 149; Rolf H. Weber, Basler Kommentar, Obligationenrecht II, 5. Aufl. 2016, N. 9 zu Art. 697e
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR).

4.3.

4.3.1. Das Gesetz muss in erster Linie aus sich selbst heraus, das heisst nach dem Wortlaut, Sinn und Zweck und den ihm zugrunde liegenden Wertungen auf der Basis einer teleologischen Verständnismethode ausgelegt werden. Die Gesetzesauslegung hat sich vom Gedanken leiten zu lassen, dass nicht schon der Wortlaut die Norm darstellt, sondern erst das an Sachverhalten verstandene und konkretisierte Gesetz. Gefordert ist die sachlich richtige Entscheidung im normativen Gefüge, ausgerichtet auf ein befriedigendes Ergebnis der ratio legis. Dabei befolgt das Bundesgericht einen pragmatischen Methodenpluralismus und lehnt es namentlich ab, die einzelnen Auslegungselemente einer hierarchischen Prioritätsordnung zu unterstellen (BGE 145 III 63 E. 2.1; 141 III 195 E. 2.4 S. 198 f.; 140 III 206 E. 3.5.4 S. 214; je mit Hinweisen).

4.3.2. Nach Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR gibt der Richter der Gesellschaft und den Gesuchstellern Gelegenheit, zum bereinigten Bericht des Sonderprüfers Stellung zu nehmen und Ergänzungsfragen zu stellen. Der Gesetzestext bestimmt somit klar, dass der Richter den Parteien eine Möglichkeit zu geben hat, damit diese eine Stellungnahme einreichen und dem Sonderprüfer Ergänzungsfragen stellen können. Das Gesetz legt aber nicht ausdrücklich fest, wie dies zu geschehen hat. Konkret wird nicht explizit geregelt, ob der Richter den Parteien Frist anzusetzen bzw. sie zu einer Verhandlung vorzuladen hat, oder ob er den Parteien den Bericht bloss zustellen kann und sie von sich aus reagieren müssen, wenn sie eine Stellungnahme einreichen und Ergänzungsfragen stellen wollen. Der Wortlaut der Gesetzesbestimmung ("Er gibt"/"Il donne"/"Egli dà") indiziert aber, dass die Gesellschaft und die Gesuchsteller ihre Stellungnahme und Ergänzungsfragen nicht unaufgefordert ins Verfahren einbringen müssen, sondern der Richter ihnen eine ausdrückliche Möglichkeit dazu einzuräumen hat.

4.3.3. In der Botschaft des Bundesrats wird zur Bestimmung von Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR ausgeführt, dass der bereinigte Bericht des Sonderprüfers den Parteien, d.h. den Gesuchstellern und der Gesellschaft, übergeben werde. Den Gesuchstellern werde noch einmal "Gelegenheit eingeräumt", Ergänzungsfragen zu stellen (Botschaft über die Revision des Aktienrechts vom 23. Februar 1983, BBl 1983 II 745 ff., S. 911; ohne Diskussion in den Räten: AB Nationalrat 1985 S. 1770; AB Ständerat 1988 S. 506). Auch aus den Materialien ergibt sich damit nicht klar, wie der Richter vorzugehen hat. Die Formulierung in der Botschaft, wonach der Richter den Parteien "Gelegenheit einräumt", deutet aber - wie der Wortlaut der Bestimmung - darauf hin, dass der Gesetzgeber der Auffassung war, dass die Parteien nicht von sich aus ihre Stellungnahme und ihre Fragen vorzubringen haben. Wie die grammatikalische Auslegung führt jedoch auch das historische Auslegungselement zu keinem eindeutigen Ergebnis.

4.3.4. Mit Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR werden den gesuchstellenden Aktionären und der geprüften Gesellschaft die Mitwirkungsrechte eingeräumt, dem Sonderprüfer nach der Durchführung der Untersuchung ergänzende Fragen zu stellen und zum Bericht des Sonderprüfers eine Stellungnahme einzureichen.
Das Recht, dem Sonderprüfer Ergänzungsfragen zu stellen, erlaubt es der geprüften Gesellschaft und den Gesuchstellern, Mängel im Bericht aufzudecken und Lücken zu schliessen, und damit den Sonderprüfungsbericht zu bereinigen und zu vervollständigen, bevor er veröffentlicht wird; insbesondere bevor der Bericht den anderen Aktionären bekannt gegeben wird. Es ist für die Gesuchsteller sodann die einzige Möglichkeit, auf den Sonderprüfungsbericht einen gewissen Einfluss zu nehmen und unter Umständen eine Ausweitung der Sonderprüfung herbei zu führen (dazu: Urteil 4P.183/2005 vom 2. November 2005 E. 3.3).
Das Recht, eine Stellungnahme zum Sonderprüfungsbericht einzureichen, bewirkt demgegenüber keine materielle Änderung der Ergebnisse der Sonderprüfung. Sie erlaubt es aber den Gesuchstellern und der Gesellschaft, den Bericht des Sonderprüfers aus ihrer eigenen Sicht (kritisch) zu würdigen (vgl. Urteil 4P.183/2005 vom 2. November 2005 E. 3.3). Die Stellungnahmen der Parteien werden anschliessend der Generalversammlung zusammen mit dem allenfalls mit Ergänzungsfragen vervollständigten Bericht unterbreitet (Art. 697f Abs. 1
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
OR). Die Generalversammlung soll durch die Stellungnahmen Kenntnis von der subjektiven Einschätzung des Berichts durch die geprüfte Gesellschaft und die gesuchstellenden Aktionäre, und damit ein möglichst vollständiges Bild über den abgeklärten Sachverhalt erhalten.
Damit der Bericht des Sonderprüfers komplettiert werden kann und die Stellungnahmen der Generalversammlung vorgelegt werden können, erscheint es angebracht, dass der Richter den Parteien den Bericht des Sonderprüfers nicht bloss zustellt und abwartet, dass sie von sich aus Stellung nehmen und Fragen stellen. Vielmehr sollen die Parteien in jedem Fall darauf aufmerksam gemacht werden, dass sie das Recht haben, dem Sonderprüfer Ergänzungsfragen zu stellen und zu seinem Bericht Stellung zu beziehen. Aus teleologischen Überlegungen ist es daher angezeigt, dass der Richter die Parteien ausdrücklich auf ihre Mitwirkungsrechte aufmerksam macht.

4.3.5. Das wird in systematischer Hinsicht dadurch bekräftigt, dass die auf Art. 697e
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR folgende Bestimmung von Art. 697f Abs. 1
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
OR regelt, dass der Verwaltungsrat der Generalversammlung die Stellungnahmen zusammen mit dem Bericht des Sonderprüfers unterbreitet. Das Gesetz geht damit davon aus, dass Stellungnahmen zum Sonderprüfungsbericht vorhanden sind, welche der Verwaltungsrat der Generalversammlung zusammen mit dem Sonderprüfungsbericht unterbreitet. Damit solche Stellungnahmen vorliegen, welche der Verwaltungsrat in der Folge der Generalversammlung zugänglich machen kann, scheint es auch aus systematischen Überlegungen richtig, dass der Richter die Parteien ausdrücklich einlädt, eine solche einzureichen.

4.4. Zusammenfassend führt die Auslegung von Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR zum Ergebnis, dass der Richter den gesuchstellenden Aktionären und der Gesellschaft ausdrücklich Gelegenheit einräumen muss, eine Stellungnahme zum Sonderprüfungsbericht abzugeben und Ergänzungsfragen dazu zu stellen.
Der Richter kann dieser Pflicht dadurch nachkommen, dass er den Parteien je nach den konkreten Umständen des Einzelfalls entweder eine kurze Frist ansetzt, damit diese ihre Stellungnahme und Fragen schriftlich einreichen können, oder sie zu einer mündlichen Verhandlung vorlädt (vgl. dazu: Böckli, a.a.O., § 12 N. 72; Casutt, a.a.O., § 14 Rz. 6; Gabrielli, a.a.O, S. 137; Weber, a.a.O., N. 9 zu Art. 697e
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR).

4.5. Klarzustellen ist, dass vorliegend einzig für die spezifische Sondervorschrift von Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR entschieden wird, dass der Richter den Parteien ausdrücklich Gelegenheit im obigen Sinn einzuräumen hat. Das Bundesgericht nimmt keine Stellung zu anderen (prozessualen) Vorschriften, nach denen der Richter den Parteien Gelegenheit zur Stellungnahme oder zu Ergänzungsfragen einzuräumen hat, namentlich nicht zur Wahrung des Replikrechts (vgl. etwa BGE 142 III 48 E. 4.1.1 S. 54; Urteile 1B 340/2018 vom 18. Oktober 2018 E. 2.3; 5A 1022/2015 vom 29. April 2016 E. 3.2.2).

5.
Die Vorinstanz ist nach dem Gesagten ihren richterlichen Pflichten nach Art. 697e Abs. 3
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
OR durch das blosse Zustellen des Sonderprüfungsberichts nicht hinreichend nachgekommen. Vielmehr hätte sie dem Beschwerdeführer und der Beschwerdegegnerin ausdrücklich Gelegenheit einräumen müssen, Ergänzungsfragen zum Sonderprüfungsbericht vom 10. Januar 2019 zu stellen und eine Stellungnahme dazu einzureichen.

6.
Die Beschwerde ist daher gutzuheissen. Entsprechend dem Antrag des Beschwerdeführers ist die Dispositivziffer 1 der angefochtenen Verfügung aufzuheben (Art. 107 Abs. 1
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
BGG). Die Sache ist zur Fortführung des Verfahrens an die Vorinstanz zurückzuweisen. Die Vorinstanz hat dem Beschwerdeführer und der Beschwerdegegnerin eine ausdrückliche Gelegenheit im oben genannten Sinn zu geben, Ergänzungsfragen zum Sonderprüfungsbericht vom 10. Januar 2019 zu stellen und eine Stellungnahme einzureichen.

7.
Bei diesem Ausgang des Verfahrens obsiegt der Beschwerdeführer vollständig, sodass ihm keine Kosten aufzuerlegen sind (Art. 66 Abs. 1
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
BGG). Der Kanton Zürich darf nicht mit Gerichtskosten belastet werden (Art. 66 Abs. 4
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
BGG). Die Beschwerdegegnerin identifizierte sich nicht mit dem angefochtenen Entscheid und sie hat sich der Beschwerde vor Bundesgericht nicht widersetzt. Sie machte im Gegenteil vor Bundesgericht geltend, dass sie nicht am Verfahren teilnehmen wolle und beantragte, dass die Kosten des Verfahrens dem Kanton aufzuerlegen seien. In der Tat ist es in dieser speziellen Situation nicht angebracht, ihr die Kosten und Entschädigungsfolgen aufzuerlegen. Es erscheint mithin gerechtfertigt, auf die Erhebung von Kosten zu verzichten (Art. 66 Abs. 1
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
BGG) und den Kanton Zürich zu verpflichten, dem obsiegenden Beschwerdeführer eine Parteientschädigung zu bezahlen (Art. 68 Abs. 2
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
BGG).

Demnach erkennt das Bundesgericht:

1.
Die Beschwerde wird gutgeheissen. Die Dispositivziffer 1 der Verfügung des Handelsgerichts des Kantons Zürich, Einzelgericht, vom 16. April 2019 wird aufgehoben. Die Sache wird zur Fortführung des Verfahrens im Sinne der Erwägungen an die Vorinstanz zurückgewiesen.

2.
Es werden keine Gerichtskosten erhoben.

3.
Der Kanton Zürich hat den Beschwerdeführer für das bundesgerichtliche Verfahren mit Fr. 2'500.-- zu entschädigen.

4.
Dieses Urteil wird den Parteien und dem Handelsgericht des Kantons Zürich, Einzelgericht, schriftlich mitgeteilt.

Lausanne, 16. Oktober 2019

Im Namen der I. zivilrechtlichen Abteilung
des Schweizerischen Bundesgerichts

Die Präsidentin: Kiss

Der Gerichtsschreiber: Brugger
Decision information   •   DEFRITEN
Decision : 4A_223/2019
Date : 16. Oktober 2019
Published : 31. Oktober 2019
Court : Federal court
Status : Suggested for publication
Subject area :
Regeste : Akteinrecht; Sonderprüfung


Legislation register
BGG: 42  66  68  90  105  106  107
BV: 29
0 Art. 29 General procedural guarantees SR 101 Federal Constitution of the Swiss Confederation
1    Every person has the right to equal and fair treatment in judicial and administrative proceedings and to have their case decided within a reasonable time.
2    Each party to a case has the right to be heard.
3    Any person who does not have sufficient means has the right to free legal advice and assistance unless their case appears to have no prospect of success. If it is necessary in order to safeguard their rights, they also have the right to free legal representation in court.
OR: 697a 
0 Art. 697a J. Personal membership rights / V. Right to instigate a special audit / 1. With approval of the general meeting - V. Right to instigate a special audit 1. With approval of the general meeting SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    Any shareholder may request the general meeting to have specific matters clarified by means of a special audit, where this is necessary for the proper exercise of shareholders' rights and he has already exercised his right to information and inspection.
2    Where the general meeting adopts the motion, the company or any shareholder may apply to the court within 30 days for appointment of a special auditor.
697b 
0 Art. 697b J. Personal membership rights / V. Right to instigate a special audit / 2. If motion rejected by the general meeting - 2. If motion rejected by the general meeting SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    Where the general meeting rejects the motion, shareholders together representing at least 10 per cent of the share capital or shares with a nominal value of 2 million francs may apply to the court within three months for the appointment of a special auditor.
2    The applicants are entitled to have a special auditor appointed where they make a prima facie case that the founder members or governing officers have violated the law or the articles of association and thereby harmed the company or the shareholders.
697c 
0 Art. 697c J. Personal membership rights / V. Right to instigate a special audit / 3. Appointment - 3. Appointment SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The court decides after hearing the company and the applicant.
2    If the court accepts the application, it entrusts an independent expert with the task of carrying out the audit. The court defines the scope of the audit based on the application.
3    The court may also entrust the special audit to several experts jointly.
697e 
0 Art. 697e J. Personal membership rights / V. Right to instigate a special audit / 5. Report - 5. Report SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The special auditor draws up a detailed report on the results of his audit, although he must safeguard trade secrets. He submits his report to the court.
2    The court makes the report available to the company and at its request decides whether any passages in the report violate the company's trade secrets or other interests warranting protection and therefore may not be presented to the applicants.
3    It gives the company and the applicants the opportunity to respond to the content of the report, adapted as necessary, and to ask supplementary questions.
697f
0 Art. 697f J. Personal membership rights / V. Right to instigate a special audit / 6. Procedure and publication - 6. Procedure and publication SR 220 Federal Act on the Amendment of the Swiss Civil Code - Part Five: The Code of Obligations
1    The board of directors makes the report and the responses to it available to the next general meeting.
2    Any shareholder may request a copy of the report and the responses to it from the company for one year following the general meeting.
ZPO: 53 
CPC Art. 53 Right to be heard SR 272 Swiss Civil Procedure Code - Civil Procedure Code
1    The parties have the right to be heard.
2    They have in particular the right to consult the case files and to obtain copies thereof provided this does not conflict with overriding public or private interests.
241 
CPC Art. 241 Settlement, acceptance, withdrawal SR 272 Swiss Civil Procedure Code - Civil Procedure Code
1    If notice of a settlement, acceptance of the claim or withdrawal of the action is placed on record in court, the parties must sign the record.
2    A settlement, acceptance of the claim or withdrawal of the action has the same effect as a binding decision.
3    The court shall dismiss the proceedings.
242
CPC Art. 242 Proceedings made groundless for other reasons - If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed. SR 272 Swiss Civil Procedure Code - Civil Procedure Code
BGE-register
140-III-16 • 140-III-206 • 141-III-195 • 142-III-48 • 142-III-738 • 145-III-63
Weitere Urteile ab 2000
1B_340/2018 • 4A_223/2019 • 4A_249/2018 • 4P.183/2005 • 5A_1022/2015 • 5A_838/2015
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BBl
1983/II/745