Debt collection and bankruptcy law

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Basic data
Title: Federal Law on Debt Collection and Bankruptcy
Abbreviation: SchKG
Type: Federal law
Scope: Switzerland
Legal matter: Foreclosure law
Systematic
legal collection (SR) :		 281.1
Original version from: April 11, 1889
Entry into force on: January 1, 1892
Last change by: AS 2017 2165
Effective date of the
last change:		 March 28, 2017
Please note the note on the applicable legal version.

The Swiss debt collection and bankruptcy law is part of the enforcement law . Since self-help is fundamentally forbidden for a creditor , the Federal Act on Debt Collection and Bankruptcy (SchKG) regulates the procedure for enforcing claims in the form of cash payments or monetary security deposits by means of state power. In Switzerland, collecting debts is called debt enforcement .

history

The Federal Act on Debt Collection and Bankruptcy (SchKG) came into force on January 1, 1892 and has been revised several times since then. It is the oldest part of the civil law codified at the Swiss (federal) level and is older than the civil code and the Code of Obligations , which explains certain peculiarities.

Historically, the DEBA goes back to the Paulian lawsuit, known in Roman law since Justinian .

Overview

Basically there are three bankruptcy proceedings: bankruptcy , probate proceedings and bankruptcy deferral. The bankruptcy is usually carried out by the competent bankruptcy office and leads to the liquidation of the debtor. An inheritance procedure is - in principle - a restructuring process that runs in two phases: a deferral, during which assets and liabilities are taken up ( debt call ) and a restructuring plan is drawn up, and an implementation phase in which the creditors are ranked by dividend, Installment payments or liquidation proceeds are satisfied. With the deferment of bankruptcy, there is finally still a restructuring procedure available, with which debtors who are basically capable of restructuring receive a deferral under the supervision of the court and an administrator to work out a restructuring.

The admitted creditors are classified in the collocation . In principle, only those creditors who have registered their claims are included in the schedule of claims, which is usually drawn up by the bankruptcy office. Collocation takes place even without registration for:

  • rights registered in the land register (Art. 226 SchKG)
  • servitutes apparentes
  • direct legal liens / restrictions on disposal

In bankruptcy, those claims can also be entered for which bankruptcy proceedings according to Art. 43 SchKG are excluded.

The collocation is a prerequisite for later being able to participate in the proceeds from the liquidation of the bankruptcy estate ( dividend ).

Most of the regulations on debt collection and bankruptcy law can be found in the Federal Act on Debt Collection and Bankruptcy (SchKG). In addition, cantonal legislation and international law also have a certain significance.

In Switzerland, for example, enforcement of a (monetary) claim is possible by virtue of state coercion even without a material judicial assessment of the claim, which is a special feature. However, the debtor can request a judicial assessment within 10 days of receipt of the debt enforcement, the corresponding legal remedy is called a legal proposal. This interrupts the prosecution until a final decision has been made on the claim by a court. If the claim has been legally recognized or no legal proposal has been made, the debt enforcement procedure will continue. In extremis, debt enforcement is enforced either by attachment or bankruptcy , whereby the creditor does not have the choice; the law regulates exactly which procedure is used (in simple terms, bankruptcy is recognized if the company is a company registered in the commercial register, and attachment in the other cases, especially in proceedings against private individuals). If bankruptcy or attachment ends without the creditor's claim being (fully) satisfied, the creditor receives a certificate of loss ; in the case of the debtor's new assets, he can open a new procedure within 20 years. In addition, the debtor can of course satisfy the obligee at any time during the proceedings and thereby terminate the proceedings; It should be noted that payments can only be made to the debt enforcement office from the date of enforcement, and that fees and interest are incurred in addition to the amount of the claim.

In addition to the SchKG, numerous ancillary edicts (in particular the VZG ) form legal sources of debt collection and bankruptcy law.

The SchKG governs in his eleventh title also part of the reorganization law ( moratorium , debt restructuring agreement , after debt consolidation ).

The DEBA provides for the following as the responsible bodies:

terminating the proceeding

Changes from 2014

On January 1, 2014, a revised restructuring law came into force.

The following changes have been made to the Federal Act on Debt Collection and Bankruptcy (SchKG):

  • In future, the debt restructuring moratorium no longer necessarily has to end in a debt restructuring agreement or bankruptcy, but can increasingly also be granted for purely forbearance purposes.
  • The approval of the debt restructuring agreement no longer depends on the satisfaction of the third-class claims being ensured. In the case of a proper debt restructuring agreement, the shareholders will also have to make an appropriate restructuring contribution in the future so that a certain degree of equal treatment with the creditors is achieved.
  • In the case of continuing obligations (e.g. rental or leasing contracts) in insolvency, a differentiation is made as to whether there is a liquidation case (bankruptcy or estate agreement with assignment of assets) or a debt restructuring moratorium for the purpose of restructuring and then continuing the company. In the event of liquidation, it is assumed that the continuing obligation will be properly terminated if the bankruptcy administration does not want to continue the contract and does not enter into it. In the case of a debt restructuring moratorium, on the other hand, the debtor can extraordinarily dissolve a long-term obligation with the approval of the trustee, but the other party must be fully compensated.
  • The participation rights of the creditors during the debt restructuring moratorium are strengthened in particular to protect against hasty liquidation actions. The probate court may set up a representative committee of creditors to oversee the trustee.
  • If a company is taken over as part of insolvency proceedings, there is no longer any obligation to take over all previous employment contracts. Whether and to what extent the employment contracts are also taken over with the company is to be negotiated between the parties involved on a case-by-case basis. To compensate for this, there is a new general social plan obligation in the event of layoffs, unless a debt restructuring agreement is concluded. However, this obligation only applies to companies with more than 250 employees who want to lay off more than 30 employees.
  • The privilege for claims from value added tax in the second bankruptcy class, which was introduced with the new Value Added Tax Act on January 1, 2010, is canceled. This privilege has made many renovations difficult so far.
  • The action to contest transactions that have been concluded to the detriment of one or more creditors should be eased if the asset shift takes place in favor of a related person. This also applies to shifts within a group.

literature

  • Kurt Amonn, Fridolin Walther: Outline of debt collection and bankruptcy law. 9th fully updated edition Stämpfli, Bern 2013 ISBN 978-3-7272-8665-0
  • Hans Ulrich Walder (Ed.): SchKG, debt collection and bankruptcy. Zurich 1997 ISBN 3-280-02178-2
  • Walter A. Stoffel: Voies d'exécution. Stämpfli, Bern 2010 ISBN 978-3-7272-2367-9
  • Walter Stohler: Collect money, a practical guide, foreclosure under Swiss law (DEBA). Bottmingen 2005 ISBN 3-033-00678-7

Web links

Individual evidence

  1. ↑ Debt collection and bankruptcy , Swiss Confederation, accessed December 31, 2011.
  2. ↑ Exceptions: Art. 52 Para. 3 OR, Art. 926  ZGB (Hunziker / Pellascio, p. 1)
  3. ↑ According to BGE  129 III 193 , the term "collateral" is not in Article 38 SchKG on collateral in the money limited
  4. ↑ Hunziker / Pellascio, p. 221.
  5. ↑ Hunziker / Pellascio, p. 222.
  6. ↑ http://www.admin.ch/ch/d/sr/281_1/index.html
  7. ↑ cf. on this Hunziker / Pellascio, p. 3 ff.
  8. ↑ cf. on this Hunziker / Pellascio, p. 11 ff.