Legal opening

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With the right opening is in the Swiss legal system in the enforcement process , the objection raised by the debtor legislative proposal eliminated, can be continued so that the driver (enforcement).

Switzerland

If the call immediately on a court judgment is based or a judgment equivalent title, so can creditors a simplified procedure when judges according to Art. 80 SchKG directly the definitive apply right opening. The debtor can only take action against this if he can prove the repayment or deferral of the debt by means of documents or if the claim has already expired.

If there is a public document or a signed acknowledgment of guilt (e.g. a contract), a simplified procedure can also be used to apply for the provisional opening of the law within the meaning of Art. 82 DEBA. If the provisional opening of the law is granted, the debtor has 20 days to sue in a proper process to have the claim withdrawn.

If neither a definitive nor a provisional legal opening title is available, the creditor must assert his claim in an ordinary process and at the same time request the court to remove the legal proposal ( Art. 79 DEBA).

According to Swiss law, the opening of the law is the first moment in which evidence has to be presented in the debt enforcement proceedings. The creditor can initiate the pursuit for no reason (even if there is no debt at all) and the debtor can also raise the legal proposal against a claim that is lawful in itself .

A decision on the opening of the law is made in an adversarial procedure. The jurisdiction lies with the court at the place of enforcement. The court costs for the legal opening procedure are between 40 and 2,000 francs.

Reception in Liechtenstein

Overview

The provisions on the opening of the law were partially accepted in Liechtenstein (RSO). However, only the provisions on the provisional legal opening from Swiss law were adopted and adapted. Due to the only partial adoption and adaptation , Liechtenstein created its own form of provisional legal opening.

According to the (not undisputed) rulings of the Liechtenstein courts, these provisions on the legal order are partially supplemented by the Liechtenstein enforcement order.

Legal effect of the legal opening procedure in Liechtenstein

The decision to open the law is only of a provisional nature. A decision is made as to whether the objection raised in the debt instigation procedure (also known as payment order procedure or dunning procedure - Art 577 ff ZPO) can be lifted or not.

Recognition of judgments in Liechtenstein

One of the most important areas of the Liechtenstein legal opening procedure is the recognition of foreign judgments and the associated legal consequences in Liechtenstein. According to Art. 49 Paragraph 2 and 50 RSO, foreign judgments are generally suitable as public documents and thus as the basis for the legal opening title. Liechtenstein law is very restrictive in connection with the recognition and enforcement of foreign judgments. Within the framework of the opening of the law, there are (exist) modest possibilities (...) to also use foreign knowledge to facilitate the procedure.

Procedure for the recognition of foreign judgments

  1. Execution of a judgment by a foreign court,
  2. Application for a payment order based on this foreign judgment in Liechtenstein,
  3. Issuance of a conditional payment order by the Liechtenstein Regional Court,
  4. Possibility of objection to the payment order by the obliged entity (therefore conditional payment order),
  5. Application for the opening of the law on the basis of the foreign judgment,
  6. The Liechtenstein court clarifies in a quick, summary procedure whether the claim is given on the basis of the existing documents (foreign judgment) or not,
  7. are the conditions before, will be enforceable ( Enforcement Code ) issued by the District Court,
  8. The obligated party can initiate an action for revocation against the enforceable title within 14 days (Art. 51 para. 4 RSO)

If the action for revocation (Art 1 let. D EO ) is filed, the proceedings in the matter itself will be carried out again in Liechtenstein, with all three instances being able to negotiate again.

Criticism of the legal opening procedure

The reception of the legal opening procedure and its application within Liechtenstein civil procedure law has also met with considerable criticism. The Liechtenstein Higher Court stated in its decision 7 Rö 2002.3-36 of August 22, 2002, item II: It should also be noted that the approval of the legal proceedings for foreign judgment (s) according to Art 49 ff RSO must be described as a legislative error regardless of whether reciprocity was required when the law was passed or not. Furthermore, in the same resolution, item II: The route via the legal opening procedure to the (ordinary) withdrawal process is a process-economically nonsensical solution.

Individual evidence

  1. ↑ Hunziker / Pellascio, p. 83 ff.
  2. ↑ Hunziker / Pellascio, p. 84.
  3. ↑ https://www.de-jure.ch/was-kosten-die-rechtsoeffnung-vor-gericht/
  4. ↑ Legal Security Ordinance of February 9, 1923 (RSO), Art 49 ff, LGBl 8/1923.
  5. ↑ It follows that the case law of the Swiss courts on the provisional opening of the law cannot simply be adopted in Liechtenstein.
  6. ↑ Mario Frick in " Are foreign documents suitable documents for opening the law in Liechtenstein? Comments on the decision of the Liechtenstein Higher Court of August 22, 2002 on 7 Rö 2002.3 ", Jus & News 2002, p. 7 ff. Decision of the Liechtenstein Higher Court in 7 Rö.2002.116 , Margin no. 9, with a different Senate line-up.
  7. ↑ Law of November 24, 1971 on enforcement and legal safeguarding procedures (enforcement order; EO), LGBl 32/2/1972.
  8. ↑ According to Art 2 EGEO (law of November 24, 1971 regarding the introduction of the law on enforcement and legal safeguarding proceedings, LGBl 32/1/1972).
  9. ↑ Mario Frick in " Are foreign documents suitable documents for opening the law in Liechtenstein? Comments on the decision of the Liechtenstein Higher Court of August 22, 2002 on 7 Rö 2002.3 ", Jus & News 2002, p. 12 ff.
  10. ↑ In principle, a foreign judgment is suitable as a basis for opening the law if the person concerned was properly summoned to the proceedings, was able to defend himself, there was no special place of jurisdiction , there was no serious formal error in the judgment and there was no violation of public policy .
  11. ↑ If the absence of the conditions for issuing an enforcement order in accordance with the execution order determined by the district court, 4 RSO recourse can against that decision under Article 51 para. Are collected within fourteen days following the delivery.
  12. ↑ Resolutions in legal proceedings generally constitute such enforcement titles.
  13. ↑ The obligated ( debtor ) becomes the plaintiff and the creditor becomes the defendant.