Swiss Constitutional Framework Overview
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Questions and Answers

What condition must be met for a judge to refuse to examine evidence?

  • The judge must be convinced that the evidence will not change their opinion. (correct)
  • The judge must have no prior opinions.
  • Evidence must be deemed generally unfit.
  • The judge must consider all counterevidence.

What does hearsay evidence lack?

  • Direct evidential value. (correct)
  • Circumstantial relevance.
  • Truthfulness.
  • Witness testimony.

According to the Civil Code, who bears the burden of proof for establishing an alleged fact?

  • The party deriving rights from the fact. (correct)
  • The judge presiding over the case.
  • Any party involved in the trial.
  • The party that denies the fact.

What presumption is stated in Article 3 I of the Civil Code?

<p>Good faith is presumed unless proven otherwise. (A)</p> Signup and view all the answers

What happens in cases of unjustified refusal to cooperate in the taking of evidence?

<p>The refusal is considered during the appraisal of evidence. (C)</p> Signup and view all the answers

What is the current status of expert opinions commissioned by parties according to the content?

<p>They are treated like party statements. (D)</p> Signup and view all the answers

What does the concept of 'good faith presumption' imply for parties in proceedings?

<p>They are not required to prove good faith when invoking it. (D)</p> Signup and view all the answers

What is a characteristic of expert reports as proposed in the 2018 draft for the Civil Procedure Code?

<p>They will be classified as physical records. (A)</p> Signup and view all the answers

Who always has legal capacity to be a party in proceedings?

<p>Natural persons (C)</p> Signup and view all the answers

What action is specifically reserved for professionals under the law?

<p>Professional representation (A)</p> Signup and view all the answers

What type of action demands that the court establish whether a right exists?

<p>Action for a declaratory judgement (D)</p> Signup and view all the answers

Which of the following does NOT have to be proven in court?

<p>Personal testimonies from witnesses (B)</p> Signup and view all the answers

In which situation can a person without capacity to act participate in legal proceedings?

<p>By acting through a legal representative (A)</p> Signup and view all the answers

Which action seeks to compel a defendant to perform an obligation?

<p>Action for performance (A)</p> Signup and view all the answers

Which statement about evidence evaluation in court is true?

<p>Courts may anticipate the evaluation of evidence (B)</p> Signup and view all the answers

What is the main purpose of an action to modify a legal relationship?

<p>To create, modify, or dissolve a legal relationship (D)</p> Signup and view all the answers

What may a court infer if a party refuses to produce a document?

<p>The document contains information supporting the opposing party's claims. (C)</p> Signup and view all the answers

Under what circumstance can illegally obtained evidence be admissible in court?

<p>If there is an overriding interest in finding the truth. (C)</p> Signup and view all the answers

What is the purpose of conciliation proceedings?

<p>To reconcile the parties informally and avoid court. (C)</p> Signup and view all the answers

In which type of proceedings are financial disputes exceeding CHF 30,000 addressed?

<p>Ordinary proceedings. (D)</p> Signup and view all the answers

Which situation does typically not allow for the admissibility of evidence?

<p>Evidence involving threats or violence. (D)</p> Signup and view all the answers

What is mediation characterized by?

<p>An informal process guided by an independent third party. (D)</p> Signup and view all the answers

What must parties typically do before a case can be brought to court?

<p>Participate in conciliation proceedings. (B)</p> Signup and view all the answers

Which article relates to the seizure of documents when a third party refuses to cooperate?

<p>Article 167 I. (B)</p> Signup and view all the answers

What is the maximum value in dispute for which the conciliation authority can decide on the merits of the claim?

<p>CHF 2,000 (C)</p> Signup and view all the answers

What happens if the conciliation authority proposes a judgment that is not rejected within 20 days?

<p>It becomes binding effect. (D)</p> Signup and view all the answers

What must the parties do after being summoned for a conciliation hearing?

<p>Appear in person. (B)</p> Signup and view all the answers

What is the consequence if the defendant does not submit a written statement of defense within the deadline?

<p>The court makes a decision solely from the statement of claim. (C)</p> Signup and view all the answers

What is the purpose of an instruction hearing during court proceedings?

<p>To discuss the dispute informally. (A)</p> Signup and view all the answers

After the conciliation authority grants authorization to proceed, what timeframe does the claimant have to file the action in court?

<p>Three months (C)</p> Signup and view all the answers

What does the ruling on evidence determine during the court proceedings?

<p>Which pieces of evidence are admissible. (C)</p> Signup and view all the answers

What is the primary goal of the conciliation process?

<p>To reach an agreement between the parties. (A)</p> Signup and view all the answers

What does the principle of party disposition allow parties to do in legal proceedings?

<p>Determine the timing, subject matter, and duration of proceedings (A)</p> Signup and view all the answers

Which of the following accurately describes the court's obligations under the principle of ex-officio assessment?

<p>The court must assess the case before it even without party submissions (A)</p> Signup and view all the answers

What is a key requirement of court hearings as per the Civil Procedure Code?

<p>They must be public, and judgments must be accessible (C)</p> Signup and view all the answers

What does non-ultra petitia mean in the context of party disposition?

<p>The court may not award more or different than what was specifically requested (C)</p> Signup and view all the answers

Which of the following principles ensures that all parties must act in good faith during proceedings?

<p>Good faith principle (A)</p> Signup and view all the answers

Which article specifies the court's duty to inquire about unclear or contradictory submissions?

<p>Article 56 (A)</p> Signup and view all the answers

What regulatory framework governs arbitration in domestic cases in Switzerland?

<p>Part 3 of the Civil Procedure Code (C)</p> Signup and view all the answers

Which of the following statements is true regarding the enforcement of monetary claims?

<p>It falls under the Debt Enforcement and Insolvency Act. (A)</p> Signup and view all the answers

What is the primary requirement for representation in civil proceedings in Switzerland?

<p>Representation by a lawyer is not required in civil proceedings. (D)</p> Signup and view all the answers

Which of the following outcomes is a possible result of mandatory conciliation?

<p>Dismissal for groundlessness or settlement. (A)</p> Signup and view all the answers

What is a fundamental principle guiding the territorial jurisdiction in Swiss civil proceedings?

<p>The defendant's domicile. (A)</p> Signup and view all the answers

Which procedure applies to claims over CHF 30,000 in Swiss civil law?

<p>Ordinary procedure. (D)</p> Signup and view all the answers

What is the maximum amount a conciliation authority can render a judgment for without proceeding to court?

<p>CHF 2,000. (B)</p> Signup and view all the answers

In the Swiss legal context, what does Article 30(2) of the Federal Constitution ensure?

<p>Right to have cases decided within a jurisdiction where one resides. (C)</p> Signup and view all the answers

Which one of the following is NOT a possible outcome of the mandatory conciliation process?

<p>Dismissal for incapacity. (A)</p> Signup and view all the answers

In the ordinary procedure before the trial court, which is true regarding the exchange of written statements?

<p>The statement of claim must be followed by a statement of defense. (A)</p> Signup and view all the answers

What is a distinguishing feature of the simplified procedure in Swiss civil law?

<p>It is designed to be less formal than the ordinary procedure. (B)</p> Signup and view all the answers

Flashcards

Legal Capacity

The ability of a person or entity to be a party in legal proceedings. Natural persons generally possess legal capacity, while legal entities need legal recognition.

Capacity to Act

The ability of an individual to make legally binding decisions on their own behalf. Minors, for example, may lack the capacity to act and require representation.

Representation in Legal Proceedings

Parties can choose to be represented by a lawyer or act on their own in legal proceedings. Representation is usually reserved for lawyers, except in certain cases.

Action for Performance

A legal action where the claimant seeks a court order compelling the defendant to perform a specific action, refrain from an action, or tolerate a situation.

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Action to Modify a Legal Relationship

A legal action where the claimant seeks a court order to create, modify, or dissolve a legal relationship or a specific right or obligation.

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Action for a Declaratory Judgment

A legal action where the claimant seeks a court declaration on the existence or non-existence of a right or legal relationship.

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Right to Evidence

The right of a party to have the court consider and examine evidence presented in a timely manner and in the appropriate form.

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Free Assessment of Evidence

The court forms its opinion on the case based on its independent evaluation of the evidence presented.

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Refusing Evidence

A judge can refuse to examine evidence if they're already convinced of a fact without looking at it.

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Speed of Trial

The constitution guarantees a speedy trial, so judges can limit evidence to avoid unnecessary delays.

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Hearsay Evidence

Statements made by someone not in court, but reported by a witness. It's less reliable, but can be used as circumstantial evidence.

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Expert Opinions

Expert opinions offered by the parties are not automatically considered strong evidence. They're treated like regular statements.

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Burden of Proof

The party who benefits from a certain fact must prove it. They have the responsibility to convince the court.

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Presumption of Good Faith

The law assumes people act in good faith until proven otherwise. No need to specifically prove your good intentions.

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Cooperation in Evidence

All parties, including those not directly involved, must cooperate in providing evidence.

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Refusal to Cooperate

If a party refuses to cooperate in providing evidence without justification, the judge will consider their actions during the case evaluation.

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Refusal to Produce Documents

When a party in a legal case refuses to provide requested documents to the court, it can be interpreted as an indication that the documents contain evidence supporting the opposing party's claims.

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Disciplinary Fines

Courts can impose fines on third parties who refuse to cooperate in legal proceedings without a valid reason, such as refusing to give testimony or provide documents.

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Illegally Obtained Evidence

Evidence obtained in violation of the law, such as testimony given without informing the witness of their right to refuse, or evidence obtained through privacy breaches.

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Overriding Interest in Finding the Truth

In some cases, illegally obtained evidence may be admissible if there's a strong public interest in uncovering the truth, especially when it involves protecting vulnerable individuals.

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Conciliation Proceedings

An informal process aimed at resolving disputes between parties before legal proceedings begin, designed to prevent costly and time-consuming lawsuits.

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Mediation

An even less formal dispute resolution method where an impartial third party guides the parties towards a resolution.

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Ordinary Proceedings

Standard court procedures in civil cases where the value of the dispute exceeds a certain limit.

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Simplified Proceedings

Simplified court procedures for financial disputes with a lower value, aiming for quicker and less formal resolution.

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Principle of Party Disposition

The parties control the proceedings by deciding their subject matter, duration, and timing. The court can't initiate proceedings or force decisions beyond what's requested.

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Non-Ultra Petita

The court cannot rule on anything beyond what the parties requested in the lawsuit.

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Court's Duty to Enquire

If party submissions are unclear, contradictory, ambiguous, or incomplete, the court must ask for clarifications to ensure fairness.

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Ex-Officio Assessment

The court is obligated to assess the case, even if the parties don't explicitly request it, ensuring a fair and complete judgment.

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Public Court Hearings

Court proceedings must be open to the public, ensuring transparency and accountability.

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Public Announcement of Judgments

Court decisions must be announced publicly, ensuring transparency and access to justice.

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Ex-Officio Law Application

The court applies the law on its own initiative, ensuring consistent legal interpretation.

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How does the principle of Party Disposition affect legal proceedings?

It grants parties control over the scope, duration, and development of the legal process, allowing them to determine the issues, evidence, and proceedings.

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Conciliation Procedure

An informal method of resolving disputes where a neutral third party, called a conciliation authority, tries to help the parties reach an agreement.

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Confidentiality in Conciliation

Statements made during conciliation hearings are confidential and cannot be used in court proceedings.

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Authority to Proceed

Permission granted by the conciliation authority for the claimant to file a lawsuit in court after conciliation fails.

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Statement of Claim

A detailed document filed by the claimant in court proceedings outlining the reason for the lawsuit.

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Statement of Defence

A written response to the statement of claim filed by the defendant, presenting their arguments and evidence.

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Main Hearing

A formal court proceeding where both parties present their arguments and evidence before the judge.

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Ruling on Evidence

A court decision on the admissibility of each piece of evidence and who bears the burden of proof.

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Instruction Hearing

A less formal hearing during court proceedings where the court and parties discuss the case, gather information, or attempt to reach an agreement.

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Swiss Lawyer Representation

In Switzerland, you can choose to represent yourself or hire a lawyer in civil proceedings, but lawyers have a monopoly over professional representation before courts. The Federal Court requires legal representation, except for litigants acting on their own behalf.

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Subject-Matter Jurisdiction

This determines which court has the authority to hear a case based on the type of legal issue involved. In Switzerland, cantonal laws define this within the parameters of the Swiss Code of Civil Procedure (ZPO).

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Territorial Jurisdiction

This determines which court has authority based on where the case originates or where the parties live. Traditionally in Switzerland, the defendant's domicile was the determining factor.

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Article 30(2) Swiss Federal Constitution

This article states that any person in Switzerland against whom civil proceedings are filed has the right to have their case heard by a court within their jurisdiction (where they reside).

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Lugano Convention Influence

The Lugano Convention has impacted the traditional domicile principle for determining territorial jurisdiction in Switzerland, leading to exceptions.

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Mandatory Conciliation

This is a pre-trial process in Switzerland, required before going to court (exceptions apply). It aims to settle cases out of court through informal discussions.

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Mandatory Conciliation Outcomes

Conciliation can lead to several outcomes, including: dismissal for lack of merit, settlement (binding agreement), authorization to proceed to court, judgment by the conciliation authority, or a proposed judgment.

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Swiss Civil Procedure: Ordinary vs. Simplified

Swiss law has different procedures for civil cases: ordinary proceedings (formal, for larger claims) and simplified proceedings (less formal, for smaller claims).

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Ordinary Proceedings Structure

In ordinary proceedings, the process often includes exchange of written statements (claim, defense, replies), potential instruction hearings, and a main hearing.

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New Factual Allegations & Evidence

Swiss courts allow parties to bring new evidence or allegations but generally limit it to two opportunities. After that, justification is needed for the court to consider new information.

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Study Notes

Constitutional Framework

  • In 1848, cantons retained legislative power over civil and civil procedure law.
  • In 1898, the Confederation gained the right to legislate on civil law, but not civil procedure.
  • The 1907 Civil Code included some procedural rules, like the burden of proof.
  • The 1999 Constitution allowed for centralised legislative power over the territorial jurisdiction of Swiss courts. The Jurisdiction Act was a key codification, the first limited Swiss civil procedure law issued by the federal government.
  • Cantons issued almost 100 codes since the 19th-century, drawing on each other and foreign legislation, especially the French Code de Procedure Civile.
  • Differences existed in the content and structure of these cantonal codes.
  • A tradition of Swiss civil procedure existed before the federal code in relation to federal laws (e.g., Debt Enforcement and Insolvency Act) and Federal Supreme Court jurisprudence.
  • The 2000 reform of the Swiss justice system paved the way for the Civil Procedure Code.
  • Cantons still retain responsibility in some procedural areas like courts' organization, conciliation, justice administration, and tariffs.
  • Cantons must ensure two instances of civil jurisdiction, allowing appeals to be made to a cantonal appellate court.

Legislation

  • A need for unifying civil procedure arose by the end of the 20th century.
  • A 1999 commission of experts drafted a preliminary federal code.
  • The 2002 expert proposal unified different cantonal institutions without copying a single code.
  • A national consultation in 2003-04 welcomed unified procedure but criticized lengthy written processes and was in favour of mediation alternatives.
  • The Swiss Civil Procedure Code of 2011 replaced 26 cantonal procedures and the Jurisdiction Act.

Civil Procedure Code (ZPO)

  • The ZPO is split into 10 titles, covering general provisions, special provisions, procedures, principles, costs, and deadlines.
  • It regulates subject-matter and territorial jurisdiction, emphasizing the court's authority in assessing cases (ex-officio investigation) and emphasizing party autonomy in determining procedures.
  • It contains rules for when a claim starts, withdrawals, parties (who can be parties and how to be represented), types of actions, evidence (rules on accepting evidence), and deadlines.
  • The ZPO also contains provisions for conciliation.
  • Mediation is another option offered within the process, which is less formal than conciliation.

Conciliation Proceedings

  • Conciliation is a mandatory step before a court case.
  • It aims to resolve disputes.
  • The conciliation authority can decide on claims up to CHF 2,000 or propose a judgment on claims below CHF 5,000, which the parties can accept within 20 days.

Ordinary Proceedings

  • Ordinary proceedings start with a detailed statement of claim by the claimant, followed by a defence from the defendant.
  • Deadlines are set for submitting written statements.
  • An instruction hearing might be held if needed.
  • The final step is a main hearing for oral presentations.
  • Parties can adjust their submissions up to the end of proceedings.

Other Proceedings

  • Simplified and summary proceedings offer an expedited procedure.
  • These are suitable for certain types of matters or disputes.
  • The ZPO defines procedures for different cases, especially concerning family, same-sex partnerships, and discrimination.

Appellate Proceedings

  • The ZPO provides three appellate remedies: appeal, objection, and review.
  • An appeal is the most common route typically within 30 or 10 days, depending on the nature of the process, depending on the subject value.
  • Objections address issues of incorrect application of law.
  • Review allows for reopening proceedings based on newly discovered evidence (or illegal influence).
  • Appeals occur when parties are not content with rulings from the lower/first instance courts.

Enforcement of Money Debts

  • Enforcement procedures, the ZPO, the SchKG are regulated and procedures depend on whether the dispute is monetary or non-monetary.
  • Bankruptcy procedures apply to businesses.
  • Insolvency laws are covered.
  • Different actions are possible, like for payment (Anerkennungsklage) or to refuse payment/negative declaration (Aberkennungsklage).

Swiss Court Structure and Judges

  • Professional and lay judges are part of the judging system.
  • Lay judges represent societal groups.
  • Court procedures follow structured steps.
  • Party representations are key.
  • Parties have rights, notably to participate and present evidence.

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Description

Explore the evolution of the Swiss constitutional framework regarding civil law and procedure. This quiz covers key historical milestones, including the centralization of legislative power and the impact of various cantonal codes. Test your knowledge on the 1999 Constitution and the significant reforms made in the Swiss justice system.

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