Civil Procedure Summary Switzerland PDF

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This document summarizes the Swiss civil procedure framework, encompassing its constitutional roots, the Swiss Civil Procedure Code (CPC), and key principles such as party disposition, ex-officio assessment, and party representation. It also details different types of actions, such as actions for performance and declaratory judgments, illustrating their specific roles in Swiss legal proceedings.

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Constitutional Framework ------------------------ Switzerland\'s civil procedure framework is rooted in its Constitution. **The 1848** Constitution granted **cantons** the legislative power for civil and civil procedure law. **In 1898**, **the Confederation** was granted the power to legislate on c...

Constitutional Framework ------------------------ Switzerland\'s civil procedure framework is rooted in its Constitution. **The 1848** Constitution granted **cantons** the legislative power for civil and civil procedure law. **In 1898**, **the Confederation** was granted the power to legislate on civil law **but not civil procedure**. **The Constitution of 1999** legislator was empowered to regulate the **territorial jurisdiction of Swiss courts**. Subsequently, the Swiss Jurisdiction Act was issued, unified rules on the territorial jurisdiction of Swiss courts in civil domestic matters. In 2000, a reform led to the creation of the Swiss Civil Procedure Code (CPC), effective from 2011, replacing 26 cantonal codes and unifying procedural laws. Swiss Civil Procedure Code -------------------------- The CPC, comprising 408 articles, is divided into four parts addressing general provisions, final provisions, special provisions, and arbitration. Despite the Civil Procedure Code, the **cantons retained responsibility** in some procedural domains, such as the **organization of the courts** and conciliation authorities, the administration of justice in civil cases, and the tariff authority, as well as **subject-matter jurisdiction**. Important principles include acting in good faith, the right to be heard, and the court's duty to apply laws ex-officio, the court duty to enquire, hearings are public, and judgements must both be pronounced publicly and made accessible. **Jurisdiction** is divided into subject-matter (regulated by cantonal law) and territorial jurisdiction (regulated federally)- (e.g., defendant\'s domicile as default, with some exceptions, legal entities, this will be the court at the location of the company's registered office, [Specific places] for disputes over immovable property, employment law, consumer contracts). Defendants can be found to have consented tacitly to the optional jurisdiction of an incompetent court if they enter an appearance on the merits without objecting to the court's jurisdiction -- Only few places of jurisdiction are mandatory, but where this does apply it is not possible for the parties to agree on the jurisdiction. A screenshot of a computer Description automatically generated ![A diagram of law code Description automatically generated](media/image2.png) **Title 6** regulates the **three main types of actions**.  1. The first type of action is the **action for performance**, where the claimant demands that the court orders the defendant to do something, refrain from doing something, or tolerate something (Article 84): for example, the court may order the defendant to pay damages to the claimant.  2. Second, there is the **action to modify a legal relationship**, by which the claimant demands the creation, modification, or dissolution of such a relationship or a specific right or obligation (Article 87): for example, a divorce decree. 3. Third, an **action for a declaratory judgement** is used to demand that the court establish whether a right or legal relationship exists (Article 88): for example, whether a valid contract exists between two parties. The action for a declaratory judgement is subsidiary to the other actions. Key Principles of Civil Procedure --------------------------------- 1**. \*\*Party Disposition\*\*:** Parties control the timing (party can withdraw the case, accept the claim), subject matter, and proceedings\' duration. Courts cannot exceed the claims requested.**non-ultra petitia** applies: [the court may not award a party anything more or different than requested.]\ 2. **\*\*Ex-Officio Assessment\*\*:** Courts act beyond party control where public interest or weaker parties require protection. [It means that the court has a duty to assess the case before it.] *The principle of ex-officio assessment is applied where the public interest requires that the parties are deprived of their free disposal over proceedings, for instance to protect a weaker party (like a minor)*. For example, the court can award a higher sum of child maintenance than the amount requested by the claimant. **Ex-officio assessment** refers to the court\'s responsibility to evaluate and determine certain matters independently, without relying solely on the evidence or arguments presented by the parties.\ 3. **\*\*Party Representation\*\*:** Facts and evidence must be presented by parties, though courts can enquire to clarify.  meaning that only the facts produced by the parties can form the subject matter of the proceedings**.** [The parties must present the court with the facts in support of their case and submit any supporting evidence (]exception: clear facts and laws for court, commonly accepted ruled of experience, publicly known facts[)]\ 4. **\*\*Ex-Officio Investigation\*\*:** Courts investigate facts in limited cases, especially to protect weaker parties, such as in family law disputes.  within the scope of the principle of ex-officio investigation the courts cannot rely on the facts presented by the parties: they must inquire into the "material" truth ex officio**. Ex-officio investigation** can be **limited** (establish the facts) or **unlimited** (investigate the facts). [*Limited ex-offici*o investigation applies in disputes concerning matters of discrimination under employment law and certain tenancy matters]. [*Unlimited ex-officio* investigation applies in proceedings concerning children in family matters.] Where ex-officio investigation is required, the court questions the parties extensively and demands the production of relevant materials, for example by calling certain witnesses. Conciliation and Mediation in order to avoid court proceedings. --------------------------------------------------------------- Conciliation (court-demanded) is mandatory for most cases and aims to resolve disputes informally before trial, except disputes exceeding CHF 100,000 or specific exemptions. Conciliation is initiated by the claimant by filing a written or oral application. The application must identify the opposing party, the claim and the matter in dispute. [not open to the public, The parties must appear in person. The statements made during the hearing are confidential and cannot be used subsequently in any court proceedings.\ ]− Cantonal rules on organisation of conciliation authority(court, justice of the peace, specialised administrative authority).\ Mandatory conciliation -- possible outcomes POSSIBLE OUTCOMES − dismissal for groundlessness (plaintiff's default) − settlement, acceptance, withdrawal  -  same effect as binding judgment − Authorisation to proceed to court (Klagebewilligung)  -  case may be brought before court within 3 months (no automatic initiation of court proceedings!) − judgment by conciliation authority (if the party asks for that) (Entscheid) - − up to 2000 CHF - − claimant's request; discretion of conciliation authority − proposed judgment by conciliation authority (if none of the parties oppose it within 20 days) (Urteilsvorschlag)---when no agreemenen -- to court - − up to 5000 CHF (gender equality/tenancy: no upper limit) - − From 2025: up to 10\'000 CHF Mediation (voluntary) is a less formal alternative but is rarely used. Conciliation authorities can decide disputes under certain financial thresholds. Outcomes: Settlement, dismissal, or authorization to proceed. Court Proceedings ----------------- **\*\*Ordinary Proceedings\*\*:** For disputes above CHF 30,000, dominated by written submissions, structured main hearing and ruling on evidence, initiated by the claimant filing a detailed statement of claim; If the defendant does not submit within the deadline, the court can decide solely from the statement of claim (provided the court considers it is in a position to make a decision on the facts available to it). Otherwise, the court will summon the parties to the main hearing; then 2 ways: 1. Main hearing, 2. Order instruction hearing (any time during proceeding, discuss the dispute informally, complete the facts, reach an agreement, or simply prepare for the main hearing), 3. Second written exange. Prior to the main hearing, the court delivers the so-called ruling on evidence (Article 154): here the court rules on the admissibility of each piece of evidence and determines which party will have the burden of proof for each fact.\ 2. **\*\*Simplified Proceedings\*\*:** For financial disputes up to CHF 30,000, less formal and more oral in nature.\ 3. **\*\*Summary Proceedings\*\*:** Expedited processes for urgent matters or where facts are undisputed, requests for provisional measures (i.e. stopping the publication of defamatory writings), specific proceedings under the Debt Enforcement and Insolvency Act. [documents are principally the only evidence used.] Proceedings before the trial court − [Ordinary procedure] (ordentliches Verfahren) - − claims over CHF 30\'000 / claims without monetary value - − often dominated by written elements - − emphasis on formalities, strict party responsibility, de facto (but not de iure) necessity of representation by lawyer − [Simplified procedure] (vereinfachtes Verfahren) - − claims up to CHF 30\'000 (some types of claims regardless of value, like tenancy cases) - − less formal, more orality, more judicial involvement − [Summary procedure] (summarisches Verfahren) − Special procedures in family law matters − **Structure of ordinary proceedings** - − exchange of written statements - − statement of claim, statement of defence - − if ordered by court: replication \[Replik\], rejoinder \[Duplik\] − at court's discretion: instruction hearing (Instruktionsverhandlung) − main hearing (waiver by parties possible) \--two rounds of oral statements by each party. The second oral statement in the main hearing provides the parties with an opportunity to comment on the other party's first statement. \--The court may give notice of the decision to the parties without providing a written statement of the grounds, although the parties can request that such a written statement be produced within 10 days −**New factual allegations and evidence** - − two unrestricted opportunities, [after that you are restricted to bring new evidences or allegations, you will have to prove, why court should start analyzing and accepting it. ] - − two written statements for each party or - − one written statement for each party and instruction hearing where new allegations and evidence can be brought forward (i.e. instruction hearing not restricted to e.g. settlement discussions) or - − one written statement for each party and beginning of oral hearing -  from 2025: parties' first statements under Article 228(1) ZPO − admissibility of late allegations (Article 229(2),(2bis) ZPO) - − newly-arising facts and evidence - − pre-existing facts and evidence that could not have been introduced earlier despite reasonable diligence - − new facts or evidence must be introduced within a deadline set by the court; in the absence of such a deadline, they must be introduced in the next hearing at the latest − latest possibility for all new facts and evidence: beginning of the deliberation of the judgment − where facts are established ex officio, new allegations and evidence are allowed until the beginning of the deliberation of the judgment without restriction − Relationship between the judge and the parties - − Formal aspects of proceedings (service of documents, scheduling hearings etc.): responsibility of court - − Substantive case management? - − principle of party presentation - − duty to ask questions and give instructions (scope disputed; courts often reluctant, in particular towards parties represented by lawyers) - − taking evidence ex officio (powers broad in theory, but rarely used in practice) Evidence and Judgments ---------------------- Evidence includes witness testimony, documents, inspection, court-appointed experts, written statements, party interrogation. Illegally obtained evidence may be admitted if public interest outweighs private harm. Judgments and settlements are binding and enforceable under res judicata principles.  The court forms its opinion on the case based on its free assessment of the evidence taken. Evidence that relates to publicly known facts, facts known to the court, and commonly accepted rules of experience does not have to be proven. However, courts may anticipate the evaluation of evidence. This allows a judge to refuse to examine evidence if he or she is already convinced of a certain fact before taking the evidence. Hearsay must be identified by witnesses and lacks direct evidential value but may serve as circumstantial evidence. Expert opinions commissioned by parties hold no evidentiary weight, serving as party statements. Parties and third parties must cooperate in evidence-taking. A party\'s refusal affects evidence appraisal (no fine), while unjustified non-cooperation by third parties may lead to fines or compulsory measures (e.g., enforced witness appearances or document seizures) − no party-appointed experts (such expertise only qualifies as party's assertion, not as evidence) -  from 2025: reports by party-appointed experts qualify as documentary evidence **The burden of proof** for establishing an alleged fact shall rest on the person who would derive rights (benefit) from that fact. In civil cases, the burden of proof usually lies with the plaintiff. If the defendant introduces a counterclaim or new facts, they bear the burden of proving them. Appeals and Remedies -------------------- Appeals and objections can be filed against first-instance decisions. Appeals allow for full review (=/+ 10.000 CHF or non-financial matters - always), while objections are limited to legal and obvious factual errors. Reviews can reopen cases under strict conditions, such as discovering new evidence or [ ]if the decision was unlawfully influenced (lie in witness, wrong document). *A review within 90 days of the discovery of the relevant facts and within 10 years of the date the decision came into force.* Appeals against judgments − Appeal (Berufung) and objection (Beschwerde) to higher cantonal court - − depending on type of judgment and value of the dispute - − appeal: full review, (30 days (incorrect applicatgion of law or incorrect taking evidence) - − objection: full review on points of law; facts: only cases were "obviously incorrectly" established (30/10days summarry proceeding) − Civil appeal (Beschwerde in Zivilsachen) and subsidiary constitutional complaint (subsidiäre Verfassungsbeschwerde) to the Federal Court **Unlawful evidence**: Such illegally obtained evidence is generally not admissible, unless there is an overriding interest in finding the truth. Specialized rules ----------------- \- Family Law Procedures: Specialized rules for child and marital disputes. Arbitration ----------- Domestic arbitration is governed by the CPC, while cross-border arbitration follows the Private International Law Act. Arbitration offers an alternative to court proceedings, particularly for commercial disputes. Swiss judges − Professional and lay judges (lay judges: 1. Judges who are not lawyers, have no legal expertise (were elected as judges), participate in entire decision making, lay judge can sit as a single judge,   2. Lay judges, because they bring a certain expertise (in patents court (intellectual property), in commercial court (particular business), are as a part of the Panel, so there is no need to have additional experts during case) 3. Lay judges, who represent certain groups (employees, renters)) + no jury in civil cases − Elections, some judges are elected by people, and some by cantonal or federal bodies. (problematic, because politics and policy might be involved) − Influence of political parties (basis on political parties, expected to be nominated by political party)  Swiss lawyers − Federal Act on the Free Movement of Lawyers − Cantonal rules on bar admission − No requirement to be represented by a lawyer in civil proceedings (you can represent yourself or by another person) (other people, only in specific case, not professional or frequent basis) − Professional representation before courts: lawyers' monopoly  − Federal Court: representation only by lawyers (but litigants in person also admitted (by yourself), but no other people, like uncles, sisters etc)  Effects of judgments and settlements − both judgments and settlements become res judicata (exact meaning for settlements unclear) − settlement leads to termination of the proceedings ipso iure (i.e. without a judgment) − res judicata - − between the parties (inter partes) - − limited to the object of the dispute (Streitgegenstand), no collateral estoppel/issue preclusion − third-party intervention (Nebenintervention) and third-party notice (Streitverkündung): binding effect of reasons that are detrimental to the party in whose favour the third party intervened or who issued the notice (Articles 77 and 80 ZPO) **Part 1: General Provisions** 1. **Jurisdiction (Articles 4--51)**: - **Subject-matter jurisdiction** is cantonal. - **Territorial jurisdiction** is federal: - General jurisdiction: Defendant\'s domicile (natural persons) or registered office (legal entities). - Specific jurisdiction: Disputes over immovable property, employment law, and consumer contracts. - Most jurisdictions are optional; mandatory ones exclude parties' agreements. 2. **Basic Principles (Articles 52--61)**: - Good faith, right to be heard, court\'s duty to enquire, and ex-officio law application. 3. **Commencement and Withdrawal (Articles 62--65)**: - Filing makes a case \"pending.\" - Withdrawal prevents re-filing on the same matter. 4. **Parties (Articles 66--83)**: - Legal capacity required; children act through representatives. - Professional representation is generally required, except in specific disputes like tenancy. 5. **Types of Actions (Articles 84--90)**: - **Action for performance**: Orders the defendant to act or refrain. - **Action to modify relationships**: Creates or dissolves legal obligations. - **Declaratory judgement**: Establishes legal rights or relationships. 6. **Evidence (Articles 150--193)**: - Types: Testimony, documents, inspections, and court-appointed experts. - Illegally obtained evidence is generally inadmissible unless public interest prevails. **Part 2: Special Provisions** 1. **Conciliation and Mediation (Articles 197--218)**: - Conciliation is mandatory before trial in most cases (exceptions: high-value claims or urgent matters). - Mediation is less formal and rarely used. 2. **Ordinary Proceedings (Articles 219--242)**: - Applies to disputes above CHF 30,000. Written submissions dominate; instruction hearings often resolve cases early. 3. **Simplified Proceedings (Articles 243--247)**: - Financial disputes up to CHF 30,000; more informal and oral. 4. **Summary Proceedings (Articles 248--270)**: - For urgent matters, uncontested issues, or where facts and law are clear. 5. **Special Cases (Titles 6--8)**: - Include marital disputes, family matters, and same-sex partnerships. 6. **Remedies and Enforcement (Articles 308--334)**: - Appeals (value ≥ CHF 10,000), objections, and reviews. Monetary claims use the Debt Enforcement and Insolvency Act. **Part 3: Arbitration** 1. **Domestic Arbitration (Articles 353--399)**: - For disputes where both parties reside in Switzerland. 2. **Cross-Border Arbitration**: - Governed by the Private International Law Act. A screenshot of a document Description automatically generated

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