Operation

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The prosecution is the Swiss form of execution collect to monetary claims. Debt collection is carried out by the debt collection authorities.

Basis and organization

The legal basis for debt enforcement is the Swiss federal law on debt enforcement and bankruptcy of April 11, 1889 ( SchKG ; SR 281.1). The law, which is more than 100 years old, still regulates the main features of the Swiss debt collection procedure. However, the law was adapted to modern conditions in 1994 and has been in force in its current version (subject to minor amendments ) since January 1, 1997.

Swiss enforcement law is very different from the enforcement laws of most states. In particular, it is unaware of the requirement of a valid, enforceable debt instrument to initiate proceedings. This means that anyone can initiate proceedings against anyone without legal grounds. A decision on the debt instrument will not be made until later - in the legal proceedings. If the company does not defend itself at all, the process will be carried out to the end.

However, compared to other countries, the procedure is quick, uncomplicated and inexpensive. With regard to the simple initiation of the procedure, it is similar to the German dunning procedure .

Debt enforcement is carried out by the state debt enforcement authorities. Their organization is left to the individual cantons. There are debt enforcement offices at cantonal, district or district level and also municipal offices. Each canton has either one or two supervisory authorities . The highest court of appeal is the Federal Supreme Court.

The bankruptcy procedure is largely independent of the debt enforcement procedure . This is opened by a court decision; the so-called bankruptcy decree (bankruptcy decision) can only be issued after debt enforcement has been initiated, unless there is a material reason for bankruptcy.

Both debt enforcement authorities and creditors often use user software that automates the processes, contains all forms and offers a lot of legal support.

Economical meaning

In Switzerland more than two million prosecutions are initiated each year. On average around 22% of all residents are operated annually. The total of all debt enforcements exceeds one billion francs each year. Around a third of all debt enforcements are for tax claims from the federal government (especially VAT ), cantons and municipalities. In terms of frequency, debt enforcements for outstanding health insurance premiums and unpaid AHV contributions from employers follow .

Activity of the debt enforcement officer

If a creditor has a sum of money from a debtor, he may not forcibly collect it himself. He has to contact the debt enforcement office . The debt enforcement officer uses legal means to make money available on behalf of a third party; and these means go even further than those of the police . So he can open apartments, doors, rooms and cupboards without a search warrant in attachment proceedings; under certain circumstances he can even undertake such acts without the presence of the debtor. He can use police force, seal or seal rooms, or even have a debtor brought before the police. The application of a pledge seal , the so-called cuckoo , is not known in Switzerland. Bank secrecy is revoked in the execution of attachment and the banks must allow the debt enforcement officer full access to accounts, custody accounts and safe deposit boxes. The debt enforcement officer also acts as a Gantbeamter in foreclosure auctions of properties and can therefore sell properties within the framework of this official act without public certification. He can issue restrictions on disposal of the land register or other official bodies. All other public authorities as well as companies and private individuals are obliged, under threat of punishment, to provide the debt enforcement officer with the requested information. Compared to German insolvency law , the Swiss debt enforcement officer is in one person both bailiff, enforcement officer and judicial officer.

Procedure of a debt enforcement

Schematic representation (all articles refer to the SchKG)

Every operation takes place in three phases:

  • The creditor submits the debt enforcement request ; whereupon the payment order is served on the debtor
  • There are then three options:
  1. The debtor obeys the order to pay and settles the debt - the proceedings are then dropped
  2. If the debtor does not comply with the payment order and he does not dispute the claim, it comes to seizure
  3. If he disputes the claim (legal proposal), the creditor can demand the opening of the law - after which the claim is examined by the court
  • Attachment or bankruptcy : Once the debt has been confirmed, a request for realization is made , followed by the distribution and realization of the attached assets

Collection request

The enforcement begins with the debt enforcement request, which the obligee submits to the debt enforcement office. The debt enforcement office may not check the content of the request with regard to the reason for the claim and the amount - for this reason, anyone can pursue anyone else for no reason whatsoever. A debt enforcement can therefore also be initiated for a claim that does not exist but is still asserted. The Office issues the order for payment; this is formally served in accordance with Art. 64 ff. SchKG. This payment order asks the debtor to pay the claim, including interest and debt collection costs, within 20 days.

The debtor can dispute the claim or part of it within ten days after delivery of the payment order by declaring this in writing or orally at the debt enforcement office. This act is the making of a legal proposal . With the legal proposal, enforcement is stopped and the debt enforcement office does nothing of its own accord. After the ten-day dispute period has expired, the obligee receives his duplicate of the payment order with the note “Legal proposal not raised” or “Legal proposal raised” from the debt enforcement office. A legal proposal results in the obligee having to assert in court why he considers the claim to be justified.

If the debtor wants to settle the claim after receiving an order for payment, he must transmit the amount to the debt enforcement office and not the creditor - after all, the debt enforcement office must primarily know whether the debtor will meet the claim or not. This also serves to ensure that the debtor's debt collection costs can be correctly charged.

Legal opening

If the creditor wants to continue the pursuit, he can request the opening of the law or initiate a process. The opening of the law is a short legal procedure that only checks whether the creditor can present a written acknowledgment of guilt or a legally binding judgment. It also determines whether the debtor immediately raises objections or has evidence that can invalidate the acknowledgment of guilt. The obligee has twelve months from the delivery of the order for payment to request legal disclosure. An action for annulment (Switzerland) is possible against a judicial opening of the law .

If the claim is based on a court ruling (e.g. a divorce decree in which alimony is stipulated), the definitive legal disclosure only checks whether the debtor can prove that the claim has already been paid or that it is statute-barred - the legal possibilities of the The debtor are therefore very limited here, because the legal opening procedure is not about the legality of the claim - because this was already disputed in an earlier process - but whether the claim still exists. Also decrees of the state, the billag and the health insurances count as enforceable documents. An objection or complaint can be lodged against an order itself ; if the objection or complaint is not made, then it has become final and has the character of a judgment.

In the case of other documents - such as a promissory note or a contract - the obligee can request the provisional legal opening . The debtor then has twenty days to file a so-called withdrawal action with the court. Thus, the debtor opens a process that deals with the legality of the claim. In any case, the creditor must be able to produce a signed acknowledgment of guilt.

If there is no document that the creditor can produce, he can submit an action for recognition . He asks the court to assess whether there is a claim. The action for recognition is a substantive action.

If the legal opening procedure or the ordinary process has confirmed the claim, it is seized.

Garnishment

If no legal proposal has been made against a payment order or if it has been eliminated through legal proceedings or legal proceedings, the creditor can apply for the continuation of the debt enforcement at the earliest after 20 days after delivery of the payment order for a maximum of one year, after which the debt enforcement office becomes active. It decides of its own accord how the operation will be continued; namely on attachment of a private person or bankruptcy for a legal person or sole proprietorship registered in the commercial register . The private person receives a notice of attachment and the company a threat of bankruptcy. With the threat of bankruptcy, the task of the debt enforcement office for companies that are subject to bankruptcy ends.

On the basis of the notification of attachment, the private person is either attached to the apartment or on the business premises or the debtor is summoned to the debt enforcement office to execute the attachment. The following can be seized:

  • Household items,
  • Claims (i.e. debts that the debtor could collect from third parties),
  • Securities,
  • Inheritance shares,
  • Real estate and objects,
  • Wages.

Seized objects and valuables may not be sold by the debtor so that they can be used in the later phase of the collection process.

The debt enforcement officer, who now acts as a seizure officer, must observe the limits of the application of force and may not seize certain objects or claims. See also the debt enforcement official subsistence level .

90–95% of all seizures are wages. The difference between the net wage paid and the subsistence level is attached and the debtor's employer is notified of this attachment. He is obliged to deliver the seized wage portion to the debt enforcement office on a monthly basis. There is the possibility of a so-called “silent garnishment of wages”, provided that all creditors and the debt collection officer agree. The debtor undertakes to deliver the seized amount to the debt enforcement office himself so that the employer does not find out about the debt enforcement. The completed attachment is recorded in a document which the debt enforcement office sends to the obligee and the debtor.

Subsistence level under debt enforcement law

If a person's valuables have been seized, they are enabled to continue to live while preserving human dignity.

So-called competence pieces cannot be attached:

  • Stove, refrigerator,
  • religious cult objects,
  • in the case of farmers, for example, a small herd of livestock and feed for these animals, in the case of other people necessary materials (e.g. textbooks for students or work clothes)

In the case of garnishment of wages , the subsistence level or emergency requirement is observed. This subsistence level is made up of the fixed basic requirement and unavoidable other costs.

person Basic requirement
Single debtor CHF 1'200.–
Single parent debtor with support obligations Fr. 1,350.–
Married couple or other permanent household of two adults Fr. 1,700.–
Child up to ten years CHF 400.–
Child over ten years Fr. 600.–

In addition, there is the rent of a simple, functional apartment, ancillary costs (electricity, heating, etc.) and unavoidable costs such as health insurance premiums, AHV / IV taxes and health costs. The use of required means of transport, such as cars or public transport, is also allowed.

The definition of the subsistence level is not required by law; it comes from the Swiss conference of debt enforcement and bankruptcy officers , which endeavors to standardize the working methods of all debt enforcement offices. There can be cantonal differences in the subsistence level. Compare social assistance benefits .

Recovery

In the case of an attachment in property , the obligee must submit the application for recovery to the debt enforcement office no earlier than 30 days after the execution of the attachment and no later than one year after the execution of the attachment. After receiving this request, the debt enforcement office will take the necessary steps to sell the seized property. The items are transferred to the Gantlokal, the public auction ( compulsory auction ; Gant) is published and carried out. Under certain conditions, the auction can be replaced by a private sale. The net proceeds from the sale (increase amount minus debt enforcement office fees) will be disclosed to individual creditors in a distribution plan. If the distribution plan is legally valid, the allocated amounts are paid out to the creditors.

In the case of garnishment of wages, accounting and allocation take place automatically after the end of the garnishment year (per garnishment group).

For the unsecured amount of the claim including interest and costs, the obligee receives a certificate of loss and, in the case of a claim secured by a pledge, a deposit certificate. The certificate of loss is an official document, which makes the claim statute-barred for 20 years. The interest run has stopped. The loss certificate represents a legal opening title with which the obligee can operate the debtor again at any time as soon as he has acquired new assets.

Further tasks of the debt enforcement office

The arrest ( arrest of property): With an arrest order issued by the court, the debt enforcement office can quickly secure a monetary claim or operate a foreign debtor in Switzerland. The execution of arrest by the debt enforcement office takes place in a similar way to a seizure. The arrest is a precautionary measure; this must be subsequently confirmed by a normal debt collection procedure (payment order). The loss certificate entitled under SchKG to such arrest.

With the right of retention (right of retention ), the landlord of a business space has a very strong legal remedy in hand if the tenant does not pay the rent. The debt enforcement office confiscates the objects in the rooms and gives the landlord a legally regulated lien. Similar to a garnishment deed, these things are documented in the retention deed by the debt enforcement office. Since retention is a precautionary measure, it must be confirmed by a debt enforcement request for the realization of a pledge .

The debt enforcement office keeps the retention of title register . If a seller wants to claim ownership of an item until full payment has been made, a simple reference on the invoice is not sufficient under Swiss law. This retention of title must be recorded in a special clause in the purchase contract. The retention of title is only valid if this contract is entered in the reservation of title register.

Debt collection register

Anyone who can substantiate an interest can request an extract from the debt enforcement and loss certificate register from the debt enforcement office via a natural or legal person. Such information, which however only provides information about the number and sums of any previous debt enforcements, can contribute to the decision on the creditworthiness of the person or company in question. They are often requested when applying for a loan, when looking for an apartment, looking for a job, larger orders on credit or by appointment, applications for credit or customer cards. This service is highly valued by the economy and is often used (experience: approximately the same amount of information as payment orders per debt enforcement office). In many cases, a person himself has to show a confirmation from the debt enforcement office that there are no debt enforcements against him, for example when taking over offices or a state license .

The debt enforcement register documents the progress of every debt enforcement procedure. Entries are not deleted. This means that an entry remains in place even if the debtor pays the debt after an order for payment; after five years, however, only courts and administrative authorities have access to the entries.

No information at all is given when the pursuit

  • is void or has been overturned by a judgment or a complaint;
  • was reversed by allowing the debtor to reclaim the amount through a court action after unlawful pursuit;
  • withdrawn by the creditor. People who have wrongly received an order for payment from the debt enforcement office have been able to submit a request within three months since January 1, 2019.

Since debt enforcement offices are organized locally or by district, an excerpt from the debt enforcement register only provides information about those debt enforcements that were initiated at the debt enforcement office of the relevant place of residence. If someone has changed place of residence within the last five years, information must be requested from two or more debt enforcement offices.

Enforcement on pledge recovery

For example, in the case of loans between private individuals, a so-called pledge is agreed as security for the loan . If the debtor cannot repay the loan, the obligee can request the debt enforcement office to sell the pledge in order to settle the claim.

It is imperative that it is agreed in the loan contract which items are to be considered as pledges. The debtor must also hand over the pledge to the obligee immediately after signing the loan agreement - if the thing is not in the possession of the obligee, it cannot be called a pledge. The obligee may not damage the pledge or reduce its value.

Collection for bankruptcy

The enforcement in bankruptcy can be in the form of ordinary bankruptcy enforcement according to Art. 159 et seq. SchKG or optionally of those (rapid) change enforcement according to Art. 177 ff take place. SchKG.

In certain cases, bankruptcy proceedings are also permitted without prior enforcement (Art. 190 ff. SchKG).

If the assets are unlikely to be sufficient to cover the costs of a summary procedure, the bankruptcy proceedings will be discontinued due to a lack of assets .

See also

swell

  1. ↑ Hunziker / Pellascio, p. 11
  2. ↑ Hunziker / Pellascio, p. 2
  3. ↑ Hunziker / Pellascio, p. 16
  4. ↑ Hunziker / Pellascio, pp. 182, 204 ff.
  5. ↑ Peter Siegenthaler: Falling payment behavior: This is why debt enforcement is booming in Switzerland swissinfo.ch, January 16, 2019
  6. ↑ Federal Statistical Office : Debt enforcements and bankruptcies Data as of April 11, 2019
  7. ↑ (Basel Commentary-Acocella ad Art. 38 N 6)
  8. ↑ Hunziker / Pellascio, p. 71
  9. ↑ Sample in Hunziker / Pellascio, p. 73
  10. ↑ Hunziker / Pellascio, pp. 22, 80 f.
  11. ↑ Hunziker / Pellascio, p. 46
  12. ^ Anne-Barbara Luft: Now is the end of unjustified debt enforcement Neue Zürcher Zeitung , January 30, 2019
  13. ↑ cf. on this Hunziker / Pellascio, p. 183 ff.
  14. ↑ cf. on this Hunziker / Pellascio, p. 198 ff.

literature

  • Louis Dallèves ea (ed.): Poursuite et faillite. Commentaire romand . Basel 2005, ISBN 3-7190-2101-7
  • Marc Hunziker / Michel Pellascio: Debt collection and bankruptcy law . Repetitorium, Zurich 2008, ISBN 3-280-07072-4
  • Hans Ulrich Walder (Ed.): SchKG, debt collection and bankruptcy . Zurich 1997, ISBN 3-280-02178-2
  • Walter Stohler: Collect money, a practical guide, foreclosure under Swiss law (DEBA) . Bottmingen 2005, ISBN 978-3-033-00678-2

Web links