Super Provisional Disposal

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Super-provisional decision of the Federal Administrative Court (2019)

In legal parlance in Switzerland one without is hearing the other party issued a precautionary measure as a super temporary injunction (also Super temporary referred). The basis of the appeal is a super-provisional measure, namely Art. 265 ZPO .

This type of disposition can be used to avert a credibly stated, immediate endangerment of a legal interest. It takes effect immediately and without suspensive effect - i.e. without hearing the opposing side - and must be requested from the responsible district court president.

Sample cases

For example, a person can have the publication of a magazine or the broadcasting of a TV program prohibited if there is a risk of (criminal) damage to their reputation . A super-provisional cease and desist order is justified, for example, if there is a threat of a publication on the Internet that harms personality, since publications on the Internet can only be removed again with great difficulty. If the addressee of the injunction is a media company, it must be checked whether the requirements of Art. 266 ZPO are met. According to Art. 266 ZPO, the court may order a precautionary measure against periodically appearing media (e.g. a newspaper) if: the threatened violation of the law can cause the applicant party a particularly serious disadvantage, there is obviously no justification and the measure does not seems disproportionate.

Spouses can also forbid the spouse to enter the shared apartment by means of a super-provisional decree if the person concerned is suspected of violent acts.

The attachment according to Art. 271 ff. SchKG is to be regarded as a super- provisional measure . This also includes measures in intellectual property law or in marriage protection.

In these cases, the right to be heard is only granted retrospectively. In the arrest procedure, this is done through the possibility of arrest objection under Art. 278 DEBA.

Provisional

On the other hand, a provisional measure is called a precautionary measure issued after the opponent has given a prior statement.

See also

literature

  • Marc Hunziker / Michel Pellascio: Repetition of Debt Enforcement and Bankruptcy Law Orell Füssli, Zurich 2008.

Web links

Individual evidence

  1. For the requirements cf. Lukas Müller, precautionary measures, Lexwiki.ch, April 13, 2015
  2. ↑ In more detail: Lukas Müller, Temporary legal protection against Internet content according to the Swiss Code of Civil Procedure - Legal and Technical Aspects, in: Julia Hänni / Daniela Kühne, Brennpunkt Medienrecht, Zurich / St. Gallen 2009, 151 ff.
  3. Cf. Art. 266 ZPO ;: Lukas Müller, Temporary legal protection against Internet content according to the Swiss Code of Civil Procedure - Legal and Technical Aspects, in: Julia Hänni / Daniela Kühne, Brennpunkt Medienrecht, Zurich / St. Gallen 2009, 151 ff.
  4. Hunziker / Pellascio, p. 293
  5. Hunziker / Pellascio, p. 298