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- Art. 5a FC
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- Art. 43a FC
- Art. 55 FC
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- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
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- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
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- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
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- Art. 37 PRA
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- Art. 59a PRA
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- Art. 59c PRA
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- Art. 67a PRA
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- Art. 75 PRA
- Art. 75a PRA
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- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
I. Art. 106 SchKG
A. Scope of application of the opposition proceedings
1 In the opposition proceedings it is clarified whether a third party (claimant) has a better right (e.g. ownership, lien) to an asset that is to be realized in the execution against the debtor in favor of the creditor. Thus, in the opposition proceedings, substantive (preliminary) questions must be answered that have an impact on the compulsory execution.
2 The opposition procedure is not only applicable in the case of debt enforcement for attachment, but also in the case of attachment (Art. 275 SchKG), in the case of debt enforcement for the realization of a pledge (Art. 155 SchKG), in the case of rental retention pursuant to Art. 283 SchKG and in the case of the determination of new assets within the meaning of Art. 265a SchKG. If a limited right in rem to real property is asserted, the action for the adjustment of encumbrances pursuant to Art. 140 SchKG assumes the function of the action for opposition. The present commentary is oriented towards the standard case, i.e. the attachment pursuant to Art. 89 et seq. SchKG, but in principle also applies to the other proceedings.
3 In bankruptcy, there is no equivalent to the opposition proceedings, which is why the disputes are dealt with in different proceedings. For a third-party claim to ownership of movable property, the action for admeasurement and segregation pursuant to Art. 242 to Art. 243 SchKG assumes the function of the opposition action. If the claimant asserts a limited right in rem (e.g. a lien) on assets of the bankruptcy estate, this must be decided in the collocation proceedings. If it is asserted that the claimant and not the bankruptcy estate is the creditor of a claim, this must be decided in ordinary civil proceedings (so-called pretender dispute).
B. Fundamentals
4 The creditor seeks to have her claim compulsorily satisfied as soon as possible. If it is not necessary, it has no interest in initiating a time-consuming and costly dispute with the claimant about its rights to an attached asset. This consideration also underlies the legislative conception: if possible, an action for opposition should not occur at all. According to Art. 95 para. 3 SchKG, the debt collection office attaches assets of third parties only last. If one or more claimants file claims against different assets, the debt collection office must first seize those assets for which the claim appears least likely and lastly those for which the claim appears most likely.
5 However, the debt collection office must seize everything that is designated by the creditor as belonging to the debtor and appears necessary to satisfy the creditor (cf. Art. 97 para. 2 SchKG). In other words, the attachment is only inadmissible if the asset obviously does not belong to the debtor (and not even economically). Only in this case can the debt collection office refrain from the attachment, because it would then be contestable or even null and void. If the debt collection office refuses to seize the asset or to initiate the opposition procedure, an appeal must be lodged in accordance with Art. 17 ff. SchKG. The creditor and debtor can thus enforce the opposition proceedings.
C. Para. 1: Scope of application of the opposition procedure
6 Paragraph 1 is the central provision of Art. 106 SchKG. It regulates the scope of application of the opposition procedure and the procedure of the debt collection office. The procedure is initiated when the claimant asserts better rights to the attached asset.
1. Seized asset
7 The wording of Art. 106 para. 1 SchKG is too narrow. It is not only about objects, i.e. movable property (incl. securities), but also about:
Real property (whereby only the property claim is settled in the opposition proceedings; limited rights in rem are clarified in the encumbrance settlement proceedings pursuant to Art. 140 SchKG);
Claims, e.g. pre-emption, repurchase or purchase rights (whereby in the case of real estate these are again examined in the encumbrance settlement procedure), insurance claims, inheritance shares or non-securitized shares;
Intermediated securities;
Intellectual property rights;
Cryptocurrencies.
8 In short, anything that is subject to attachment can also be the subject of a third-party claim. If better rights to an unseizable asset are asserted, that right must be decided in ordinary civil proceedings (e.g., vindication action).
2. Asserted better right
9 The better right is a right that excludes or restrains the attachment, i.e. a right to be taken into account in the realization and distribution. Under certain circumstances, this may also be subject to third-party (property) law.
10 Typically, the claimant will assert that she is the owner (or co-owner or joint owner) of the attached property. How the right of ownership was acquired is governed by substantive law. All types of acquisition are possible, i.e., original or derivative acquisition. In particular, the claimant may claim that the debtor acquired the asset on her behalf and that ownership passed to her under Article 401 para. 3 CO. Likewise, the claimant may rely on a reservation of title within the meaning of Article 715 of the Civil Code.
11 Furthermore, the claimant can assert limited rights in rem to the attached property or the attached claim. Specifically, the following rights are involved:
Lien within the meaning of Art. 884 ff. CC (most frequent case);
Right of retention in rem according to Art. 712 of the Civil Code, Art. 895 of the Civil Code, Art. 268 ff. or Art. 299c of the Code of Obligations;
Usufruct.
12 In addition, the claimant may also merely register the better rank of a right in limited rem. Further rights which may oppose the attachment are provided for in family law (e.g. Art. 68e SchKG).
13 In the case of the following claims, however, no opposition proceedings are to be initiated:
If the claimant asserts a compulsory claim (e.g. for transfer of ownership): in the absence of an in rem effect, such a claim is disregarded in the realization proceedings. The situation is different if, prior to the seizure, a priority notice pursuant to Art. 960 f. CC has been made.
If the garnishee disputes the existence of the attached claim (e.g. because it has been lost through set-off). The claim is then to be seized as a disputed claim. In the doctrine, it is deduced from this that even if the claimant files rights to this disputed claim, no opposition proceedings take place: In this case, the acquirer of the disputed claim would first have to clarify with the claimant in a pretender dispute who is the creditor of the disputed claim and then sue the third party debtor for performance. This exception, which is contrary to the system, is justified by considerations of practicability. Since a disputed claim usually has only a low value, it would not be worthwhile to conduct the opposition proceedings. This view must be rejected. It is not evident why, due to the possibly low value of the claim, it should not be decided in the opposition proceedings (but in the pretender dispute) who is the creditor of the disputed claim. For this reason, the same procedure must not be followed just because the third-party debtor does not appear to be solvent, which is also advocated in some cases.
If, in the case of a wage garnishment, the debtor's creditor status is disputed (due to an assignment of wages): The claim is then to be garnished as disputed.
The lien of the creditor seeking attachment cannot be disputed by another (non-seizing) creditor, even if the latter or other third parties can themselves register a better right to the pledged object (cf. Art. 155 SchKG). In the case of the lien on movable property, there is no legal remedy corresponding to the action for the settlement of encumbrances. An objection procedure is only carried out in respect of the lien if the creditor presumably secured by the lien registers its right in the debt collection proceedings of the other creditor. However, this presupposes that the asset has been seized before the pledge is realized or - according to the view represented here - at least has been arrested.
In the case of intermediated securities, the secured party may realize its security interest (i.e. both the full and the pledge) privately even if an attachment exists, if it has reserved the right to do so by contract (Art. 31 para. 2 BESA). In this case, there is no opposition procedure. If the conditions for realization are not met (e.g. because the pledge agreement is invalid or does not entitle the debtor to private realization), the debtor's claim for damages must be attached instead in accordance with Art. 31 para. 4 BESA (probably as a disputed claim).
Not to be clarified in the opposition proceedings are claims under public law that take precedence over the attachment within the meaning of Art. 44 SchKG, namely the seizure and confiscation under criminal law. This is decided by the criminal authority and not by the civil court.
Privileges under debt collection law must be asserted in the collocation proceedings (Art. 146 SchKG) or by means of an appeal.
3. Registration of the claim
14 In principle, any person (including the debtor creditor) may register a better right, not only for himself but also for other persons. This already follows from the wording of Art. 106 para. 1 SchKG.
15 It must be clear from the application which right the claimant is asserting in which asset in which debt enforcement proceedings. If a lien is filed, the amount of the claim secured by the lien must also be stated. If the claimant fails to provide this information, the debt collection office must assume that the pledged claim corresponds to the value of the pledge. Ex officio, the debt collection office initiates the objection procedure by way of exception in the case of real estate if the requirements of Art. 10 VZG are met. In the case of securities, the debt collection office shall initiate the objection procedure without notification if, in the case of order papers, the last endorsement is not in the name of the debtor or if there are deeds of assignment or pledge indicating better rights of potential claimants.
4. Procedure of the Debt Collection Office
16 The debt collection office has no discretion in deciding whether to initiate the opposition proceedings. The debt collection office may not reject the application even if it seems clear to it that the right does not exist. Exceptionally, however, the debt collection office may disregard the application if the asset was sold by the debtor to the claimant only after the attachment and the debt collection office is convinced that the claimant knew of the attachment.
D. Para. 2: Timely Filing
17 A claimant may file a claim as long as the proceeds of the liquidated asset have not been distributed (Article 106 para. 2 SchKG).
18 However, the claimant may not wait with the filing in an abusive or grossly negligent manner. In older decisions, the Federal Supreme Court was very strict and held that the claim must be filed within ten days of knowledge of the attachment or arrestment. According to the now established case law, this is no longer necessary. However, abuse of rights is affirmed if there was no reasonable reason to wait and the claimant was aware that it would disrupt the collection or cause the creditor to take unnecessary action. Thus, the filing is manifestly abusive of the right if the filing was made one year after knowledge of the execution of the attachment and without excusable cause. Similarly, the right must already be filed with the final attachment and not only with the prosequence attachment. The prudent claimant will file her claim promptly upon learning of the attachment or upon a final determination that the attachment is permissible.
19 Abuse of rights must be considered by all authorities. The debt collection office may itself conclude that the claimant was late in filing her claim. The debt collection office or the SchKG supervisory authorities may thus decide that the right has been forfeited (at least in enforcement proceedings, see n. 20 below). The claimant's right is then not assessed at all in judicial opposition proceedings. If, on the other hand, the timely filing of the application is only raised in the judicial opposition proceedings, the court must, in my opinion, examine whether the application was filed in time.
E. Para. 3: Prosecution rights of the better-entitled person
20 According to para. 3, the rights under Art. 934 et seq. CC are reserved. The provision thus clarifies that the so-called substantive prosecution rights take precedence over the provisions on opposition proceedings. The Claimant does not forfeit her rights if she does not initiate the opposition proceedings. However, the claimant can only demand the return of the thing from a bona fide purchaser against compensation (cf. Art. 934 para. 2 CC). The provision is only relevant for objects: In the case of uncertificated claims and shares as well as uncertificated securities there are no rights of pursuit anyway.
II. Art. 107 / 108 SchKG
A. Background to the allocation of party roles
21 Art. 107 /108 SchKG regulate the so-called preliminary proceedings and allocate the party roles between creditor and debtor and claimant. Usually, creditor and debtor have diverging interests. In opposition proceedings, for once they have converging interests (at least if they have no legal or personal connection to the claimant): Both have an interest in the asset being left (unencumbered) in the garnishment. In this case, the asset is realized in favor of the creditor and the debtor's debt is reduced accordingly.
22 Art. 107 / 108 SchKG contain a mechanism that balances the interests of the creditor and the debtor as well as the claimant and efficiently distributes the party roles. The party whose position seems less likely must sue.
B. Procedure according to Art. 107 SchKG
23 If the debtor has sole custody of the attached property or his entitlement to the claim is more probable, the creditor or the debtor must dispute the right claimed. If they do not do so, it is deemed to be acknowledged. If, on the other hand, they dispute the right, the claimant must sue. If the claimant does not sue, the right is not taken into account in the attachment (Art. 107 (5) SchKG).
24 The creditor and debtor may demand that the claimant produce the evidence from which she derives her asserted right (Art. 107 para. 4 SchKG). This is a procedural obligation. Default does not lead to a reversal of the parties' roles, but may be taken into account in the allocation of costs (Art. 73 para. 2 SchKG and Art. 107 para.1 ZPO).
C. Procedure pursuant to Art. 108 SchKG
25 The situation is different if the claimant has custody or at least joint custody of the attached asset or her entitlement to the claim appears more probable. In this case, the debtor or creditor must sue the claimant within 20 days. If they do not sue, the claimant's right is deemed to be recognized and is taken into account in the attachment (Art. 108 (3) SchKG).
D. Criteria for the distribution of party roles
26 For the distribution of party roles, the decisive factor is thus who has custody or whose entitlement to the claim is more probable.
1. Custody of property
27 Custody means the direct factual control over a movable thing. This control is assessed independently of the legal circumstances. It is irrelevant whether the control is legal. Rather, it is a matter of the actual power of disposal over the thing; from a practical point of view, mostly the use. It is true that custody is related to possession under civil law. However, only the immediate owner has custody; it does not matter if the possession is merely "dependent" (e.g. in the case of a tenant). Thus, the concept of custody in the SchKG is largely congruent with that in criminal law.
28 Even if the legal circumstances are not decisive in the assessment of custody, undisputed legal criteria may allow an inference to be drawn as to the actual power of disposal. For example, an employee does not have (joint) custody of property located on the employer's premises. In the banking business, it is not the bank but the bank customer who has custody of assets in safe deposit boxes or (physical) securities accounts.
29 It should also be borne in mind that the distinction between sole and joint custody is always assessed in relation to the claimant: Thus, a married debtor living in the same household as his spouse has sole custody within the meaning of Art. 107 SchKG of an object if his brother claims ownership of it. If, on the other hand, the wife asserts rights, joint custody is to be assumed. In other words, Art. 107 SchKG must be applied even if a fourth party has joint custody.
30 As simple as the principles set out are, it can be difficult in individual cases to distinguish sole custody from joint custody within the meaning of Art. 108 SchKG. The following examples can be cited as illustrations:
In relation to persons living in the same household: Sole custody exists if the asset was kept in a place that only the debtor can dispose of (e.g. if an asset is kept in a locked desk and only the debtor has a key). Otherwise, there is joint custody.
There is sole custody if the debtor is listed in the vehicle registration document, only he uses the car and parks it in a separate garage. The fact that his wife has her own key for the garage and occasionally cleans the car is irrelevant.
According to the Zurich Supreme Court, joint custody exists in the case of a safe deposit box if the claimant has a power of attorney.
2. Probable Entitlement to Claim
31 In order to decide who is more likely to be entitled to a claim, reference is regularly made to documents. In the case of contractual claims, the person who is named as the contractual partner in a written contract is likely to be entitled. Thus, in the case of bank accounts, it is likely that the account holder is also the creditor of the claim. This does not change even if, according to Form A, another person (i.e. the claimant) is the beneficial owner.
32 In the case of a joint account, a distinction must be made between the external relationship (relationship between the bank clients and the bank) and the internal relationship (relationship between the two account holders). The purpose of the joint account is to regulate the external relationship of several persons irrespective of the internal relationship. If the credit balance is seized in the debt collection proceedings against a joint account holder and the joint account holder claims that she is entitled to the credit balance (in full or in part), it will be decided in the opposition proceedings who is actually entitled to the credit balance in the internal relationship. Although the claimant's entitlement as joint account holder is not per se more probable than that of the debtor, in practice the claimant's "joint entitlement" is assumed, which is why she is assigned the role of defendant under Art. 108 SchKG.
33 Otherwise, case law has allocated the defendant role as follows:
If the claimant can produce a deed of assignment, her entitlement is in principle more likely if the garnished claim falls under the transcription of the assigned claim. The situation is different only if the deed of assignment has an obvious defect or, according to the view expressed here, if the assignment has obvious defects in its content (e.g., the claim is unassignable).
The correctness of an entry in the Commercial Register is presumed. If there is a lack of evidence proving its incorrectness, the material entitlement of the registered shareholder to ordinary shares is more probable than that of a claimant.
In the case of a trademark, the entry in the trademark register is decisive.
3. Real property: Entry in the Land Register
34 In the case of real property, the entry in the land register is decisive. In practice, opposition proceedings pursuant to Art. 106 et seq. SchKG are seldom used in the case of real property. On the one hand, because in the case of real estate only the ownership can be the subject of the opposition proceedings and the other rights are clarified in the encumbrance settlement proceedings (cf. n. 2 above). On the other hand, because the land register provides greater clarity about the ownership situation.
4. Deviation in the case of a pass-through?
35 In the case law it is disputed whether it is possible to deviate from the regulation in Art. 107 / 108 SchKG if assets of the claimant have previously been included in the execution in attachment proceedings by means of an encroachment (cf. on encroachment n. 78 below). According to the Cantonal Court of Graubünden, a reach-through has to be disregarded even if the creditor was able to successfully invoke a reach-through in the attachment proceedings. The Federal Supreme Court, on the other hand, assumes with convincing reasoning that this is possible: the prohibition of abuse of rights applies throughout the legal system and must be observed by all authorities. According to the Federal Supreme Court, it may even be notorious that a debtor de facto uses a company as a vehicle for his assets. In this case, it certainly seems appropriate to proceed according to Art. 107 SchKG and not according to Art. 108 SchKG.
5. Custody of a fourth party
36 A fourth party is a person who has nothing to do with the debt collection and also does not claim any right to the disputed asset. If a fourth party has custody of the asset (e.g. tenant, borrower, company commissioned to repair the asset), the custody is attributed to the person for whom he exercises custody. If the fourth party exercises the custody only for the debtor, it is to be proceeded according to Art. 107 SchKG, otherwise according to Art. 108 SchKG. It depends on the opinion of the fourth party for whom he exercises the custody. 6.
6. Relevant time
37 In principle, the attachment is the relevant point in time to decide on the custody or the probable entitlement. It should be noted that the evidence that a party cites to support its position on party role allocation may also be from a later date. If the custody relationship cannot be determined at the time of the attachment, the last clearly ascertainable custody relationship is decisive.
38 If a prior attachment is made, its date is decisive. If seized assets are attached, the decisive factor for the allocation of party roles is who had custody prior to the criminal seizure. In the case of rent retention enforcement, the time of recording the retention list within the meaning of Art. 283 para. 3 SchKG is relevant. This also applies if the items are subsequently (unlawfully) returned to the debtor's premises.
E. Appeal against allocation of party roles
39 The party adversely affected may appeal against the order setting a time limit within the meaning of Art. 17 SchKG. If the claimant learns that the debt collection office is setting a time limit for the creditor and the debtor to contest their claim in accordance with Art. 107 para. 2 SchKG, it may already file an appeal against this notification if it is of the opinion that the creditor or the debtor is to be assigned the claimant role.
40 By law, the appeal has no suspensive effect (Art. 36 SchKG). If the appeal is granted suspensive effect (after a corresponding application), the time limit for raising the opposition action must be reset even if the appeal is rejected. The appealing party does not have to explicitly request that a new time limit be set for it in case it is unsuccessful.
F. Setting of a time limit
41 According to Art. 107 para. 5 SchKG or Art. 108 para. 2 SchKG, the debt collection office shall set a time limit for filing an appeal of 20 days.
42 An exception to the running of the time limit applies if one claimant files a claim for ownership of an asset and another claimant files a claim for a lien. In this case, the time limit for the creditor's or debtor's opposition action against the lien does not begin until the opposition proceedings against the claimant of ownership have ended and the asset remains in attachment. The debt collection office must give notice of this special time limit.
43 In principle, the debt collection office has no discretion in setting the deadline pursuant to Art. 108 SchKG. According to the Cantonal Court of Graubünden, even in the case of an attachment of assets, the debt collection office may not wait until a final decision has been made on the attachment (objection to attachment, appeal), but must directly set a deadline for filing an action. This case law is not appropriate: a creditor cannot be expected to prepare an opposition action while she does not yet know whether the attachment will be upheld at all. The delay caused by waiting for the final attachment decision must be accepted by the claimant. Finally, the creditor is liable under Art. 273 SchKG for the damage resulting from an unjustified attachment.
III. Art. 109 SchKG
A. Procedural classification of the opposition action
44 The prevailing opinion describes the action for opposition as a "procedural action". This qualification is not convincing: in the opposition proceedings, it is merely determined whether and with what burden an asset can be realized in the foreclosure proceedings in favor of the creditor. Although the court's determination has practical consequences for the compulsory enforcement proceedings - because the outcome of the proceedings affects the enforcement substrate - the legal situation is not changed by the judgment, as is the case with an action for constructive action. In my view, therefore, this is an action for a declaratory judgment. This view is also supported by the fact that the action for a declaration of opposition undisputedly has effect only between the parties to the proceedings and not erga omnes, as is usual in actions for a declaratory judgment. The practical effects of the qualification are, however, manageable (cf. in particular on the legal claim below n. 69 ff.).
45 Within the actions under the SchKG, the action for opposition is qualified as an action under debt collection law with a reflex effect on substantive law. According to the prevailing opinion, this also applies if the debtor and the claimant are opposed to each other. This view is convincing: at the center of the action is the determination of the extent to which the asset is included in the enforcement. The substantive aspects necessary for this are to be examined by the court only on a preliminary basis.
46 Whether the dogmatic division of SchKG actions into actions under debt collection law with or without reflex effect and actions under substantive law is meaningful in itself has been questioned in recent times. In fact, too much weight is given to these categories when they are invoked as decisive arguments for various procedural questions concerning local and subject-matter jurisdiction, arbitrability, or res judicata.
47 Although the court examines substantive aspects only on a preliminary question basis, the judgment also has "ordinary" res judicata effect. The judgment becomes final within the usual limits, i.e. the identity of the parties and the subject matter of the dispute. Although the court does not legally determine who has which right to the asset, it does make a binding decision as to whether the right asserted by the claimant will be taken into account in the execution. Should the asset in question (for whatever reason) be seized again in new enforcement proceedings, the question of the better right between the same parties would already have been legally settled. Therefore, the subject matter of the dispute is identical, even if the legal claim will be slightly different (debt collection no.; garnishment deed). This view, however, does not correspond to the prevailing opinion and case law. According to this, the opposition proceedings always only have effect for the debt collection in question and not for a further debt collection. Thus, the proceedings with binding effect could only end to the disadvantage of the claimant. If the claimant loses, the asset will be liquidated. If, on the other hand, the Claimant prevails, the creditor could initiate new debt enforcement proceedings and make a new attempt to have the asset realized in her favor with improved argumentation. This consequence does not seem appropriate. Even if the action is a reflex action under debt collection law, the court decision must have binding effect.
B. Prerequisites for Proceedings
1. Local jurisdiction
a. Domestic case
48 In domestic cases, the rule of jurisdiction is simple: if the claimant is assigned the role of defendant, the creditor or debtor must file the action at the claimant's domicile (Art. 109 para. 2 SchKG). In other cases, the court at the place of debt collection has jurisdiction (Art. 109 para. 1 SchKG). If the dispute revolves around real property, the action must be filed at the place where the real property is located (Art. 109 para. 3 SchKG).
b. International facts
49 In principle, Art. 109 SchKG is also applicable in the case of an international factual situation. In the scope of application of the Lugano Convention, the opposition proceedings fall, according to the Federal Supreme Court, under Art. 22 No. 5 Lugano Convention, irrespective of whether the creditor or the debtor faces the claimant. Dogmatic arguments can be put forward for this, namely the uniformity of the debt enforcement proceedings or the close connection to the enforcement proceedings. Ultimately, however, these arguments have a practical background: the proceedings would be complicated for all parties involved and, in particular, would be almost unreasonable for a creditor if, in the worst case scenario, she had to initiate opposition proceedings in a third jurisdiction after the recognition proceedings abroad and the enforcement proceedings in Switzerland.
50 However, this case law of the Federal Supreme Court is controversial. There are divergent opinions in the doctrine, which provide for different jurisdictions in different constellations:
According to one doctrine, the opposition action is judged according to Art. 2 LugÜ if the debtor and the claimant are opposed to each other. This is justified by the fact that it is then a substantive action. According to the view expressed here, this assumption is incorrect, which is why the conclusion must also be rejected (cf. n. 45 above).
According to another view, Art. 2 Lugano applies if the creditor or the debtor brings an action against the claimant within the meaning of Art. 108 SchKG. Since the Claimant has custody of the asset or its entitlement seems more probable, it cannot be expected to be involved in proceedings abroad (i.e. in Switzerland) where the claimed right is in fact at stake. It is rightly objected to this argument that, after all, the disputed assets are located in Switzerland. A foreign claimant must expect to be involved in a legal dispute at the place where the asset is located (e.g., in the case of a bank account or real property).
51 In summary: According to convincing Federal Supreme Court jurisprudence, even in an international situation, there is always jurisdiction in Switzerland pursuant to Art. 109 paras. 1-3 SchKG.
2. Jurisdiction on the merits
52 In principle, the cantonal law determines the substantive jurisdiction (Art. 4 ZPO). If a canton provides for a commercial court, this is not competent for opposition actions. In the Canton of Zurich, the individual court of the district court has subject-matter jurisdiction (§ 24 lit. b of the Law of the Canton of Zurich of 10.5.2010 on the Organization of Courts and Authorities in Civil and Criminal Proceedings (GOG/ZH; LS 211.1).
3. Observance of time limits
53 There is no conciliation procedure (Art. 198 lit. e No. 3 ZPO). The 20-day time limit for filing an action can therefore only be observed by filing the action with the court. Compliance with the time limit is a prerequisite for the proceedings. In principle, the time limit cannot be extended or rescheduled (by the debt collection office).
54 If the creditor misses the deadline, she can file the action again in a new debt collection, provided the assets are still available. This consequence corresponds to the order in Art. 108 para. 3 SchKG, according to which the claim (only) falls out of consideration in the relevant debt collection or is deemed to be recognized if no action is filed.
55 The time limit of 20 days for filing an action is very short. The short period is one of the reasons why in practice complaints are often lodged against the allocation of the parties' roles. If the court grants suspensive effect, the plaintiff has the necessary time even if the court ultimately rejects the complaint (see n. 40 above). If the allocation of the parties' roles cannot be challenged on the basis of the clear factual and legal situation, the doctrine mentions the possibility of filing an unfounded complaint in the simplified procedure or merely briefly substantiating the complaint in the ordinary procedure. The latter is, of course, only an emergency measure. In more complex cases, at least the creditor should start drafting the lawsuit before the debt collection if she wants to fight a presumed, already known address.
56 Whether the debt collection vacations of the SchKG or the court vacations of the ZPO are applicable for the filing of the action has not been conclusively clarified under current law. There are different opinions in the doctrine. As with other SchKG actions, there is thus considerable uncertainty. However, from the latest case law of the Federal Supreme Court, it can at least be deduced that one of the two regulations applies and that no time limit at all applies.
57 The legislator has created clarity with the revision of the CCP. Article 145 para. 4 nZPO provides that "[t]he provisions of this Act on the standstill of time limits shall apply to all actions under the SchKG that are to be filed before a court." Thus, as of the effective date of the revision, the court vacations under ZPO will be applicable. Until then, however, the prudent plaintiff will not rely on the fact that the courts already apply this provision.
58 Once the action is pending, the court vacations according to ZPO already apply under current law for the ongoing process as well as for the time limit for appeal.
59 Until now, the (exceptional) extension or restoration of the time limit has been governed by Art. 33 para. 2 and para. 4 SchKG. Since Art. 145 para. 4 nZPO only regulates the standstill of the time limit, these provisions should continue to apply.
4. Pending debt enforcement or attachment proceedings
60 If the debt collection lapses, there is no interest in legal protection, which is why the action for opposition becomes irrelevant. Likewise, the action for opposition becomes irrelevant if the debtor is declared bankrupt.
61 The court dealing with the opposition proceedings may also itself determine that the debt collection or attachment is null and void, which is why the proceedings would have to be written off. According to the Federal Supreme Court, this applies in any case if the nullity is "beyond doubt".
62 According to case law, the creditor can "abort" the opposition proceedings by withdrawing the debt collection even if she realizes that she has committed (procedural) errors and force a new opposition proceeding with a second attachment or seizure. Since the valid debt collection is a procedural requirement, this consequence is correct and the court has to write off the proceedings as without object. In this case, the creditor bears the costs of the proceedings (cf. Art. 107 lit. e ZPO).
5. Valid Application
63 The claimant may not wait with the application in an abusive manner (see n. 18 above). As mentioned in n. 19 above, the court may also examine whether the application was filed in time or late.
64 In principle, the court examines only those rights that have been filed by the claimant with the debt collection office. However, it is possible that the claimant asserts a less extensive right in the lawsuit (e.g., a lien if she claimed ownership in the application). The amendment of the claim is governed by Articles 227 and 230 of the Code of Civil Procedure.
C. Individual issues
1. Effects of the action on the attachment proceedings
65 Pursuant to Art. 109 para. 4 SchKG, the court shall notify the debt collection office of the receipt and discharge of the action. The reason for this rule lies in the effect according to para. 5, according to which the debt collection for the asset in question remains suspended and the time limits for the request for realization stand still.
2. Agreement on the place of jurisdiction
66 According to the general opinion, the jurisdiction pursuant to Art. 109 SchKG is mandatory. This is convincing: Art. 17 CCP does not apply because the SchKG regulates which court is competent to judge this action under debt enforcement law with reflex effect on the substantive law (cf. Art. 46 CCP). This also applies in international relationships.
3. Arbitrability of the action for opposition
67 It is disputed whether the action for opposition is arbitrable. At first glance, it does not seem outlandish that an arbitral tribunal can also rule on an action of opposition. In contrast to the place of jurisdiction, there is no provision in the SchKG that provides for an order for arbitration courts that deviates from the ZPO or the IPRG. Moreover, it is a question of pecuniary claims (within the meaning of Art. 177 IPRG), which the parties can freely dispose of (within the meaning of Art. 354 ZPO). Due to the latter circumstance, the protection of uninvolved attachment creditors does not speak against arbitrability. Creditors who have not themselves decided to contest an address under Art. 107 SchKG or to bring an action under Art. 108 SchKG are not in need of protection.
68 Nevertheless, there are legitimate arguments against the arbitrability of the opposition action. On the one hand, there is a close connection to enforcement proceedings and thus to public law. On the other hand, the conduct of arbitration proceedings would lead to practical problems. In the case of an arbitration agreement between debtor and claimant, it would be uncertain in individual cases whether the action for opposition should be covered by the agreement. Moreover, if several creditors and, at most, the debtor want to participate in the opposition proceedings, the situation could arise that the same dispute would be settled once before the state court and once before the arbitral tribunal. As a result, the opposition action is convincingly not arbitrable.
4. Legal claims
69 According to certain doctrinal opinions, the claimant may not request a declaration that the right in question (does not) exist. Instead, it must formulate an instruction to the debt collection office. Thus, the claimant should request that the asset be released from seizure or that the right she has filed for be acquiesced in. Such a request fits in with the qualification as a procedural claim made by the majority (see above n. 44). According to the view represented here, according to which the opposition action is an action for a declaratory judgment, the formulation as a request for a declaratory judgment would be dogmatically correct (cf. n. 44 above). In practice, however, both formulations must be possible anyway, because it is clear both in the case of an instruction to act and in the case of a request for a declaratory judgment what the plaintiff wants.
70 Since the prevailing opinion is in favor of an instruction to act, the following example is formulated in this sense. The legal claims can - following Vock/Meister-Müller - read as follows.
71 Legal request of the debtor/creditor:
"The asset value [designation] in the attachment ([no.]) dated [...] should be left in the debt collection no. [...] of the debt collection office [...] against [debtor]."
"That in Collection No. [...] of the Collection Office [...] against [Debtor], the asset [designation] be left as unencumbered in the attachment ([No.]) of [...]."
72 Claimant's legal request:
"In Collection No. [...] of the Collection Office [...] against [Debtor], the asset [designation] should be released from the attachment ([No.]) of [...]."
"It is to be noted in the debt collection No. [...] of the debt collection office [...] against [debtor] the asset [designation] in the attachment ([No.]) of [...] as having a [designation limited right in rem, e.g. lien] of the plaintiff in [[...] rank] and the right is to be taken into account in the realization in accordance with the statutory provisions."
5. Value in dispute
73 The amount in dispute is always the lowest of the following amounts: The claim pursued, the asset value (usually the appraisal value in the attachment deed) or - if a lien has been filed - the value of the claim secured by lien. The plaintiff must quantify the amount in dispute in the complaint (cf. Art. 221 para. 1 lit. c CCP).
6. Burden of proof
74 The distribution of the roles of the parties does not change the burden of proof. This is governed by Art. 8 of the Civil Code. According to this, the claimant must prove those facts that justify her claimed better right. For example, in the case of seizure of a joint account, the burden of proof lies with the joint account holder; she must prove that she is entitled to the credit balance in the internal relationship. In the case of ownership, the court will usually resort to the presumption of title under Article 930 of the Civil Code, at least if ownership is "unequivocal."
75 Particularly in the case of a lien, proof will not be excessively difficult for the third party. In most cases, a written pledge agreement is sufficient for this purpose. These documents may already be presented in the preliminary proceedings (cf. Art. 107 para. 3 SchKG / 108 para. 4 SchKG).
76 The debtor or creditor, on the other hand, bears the burden of proof for those facts from which they derive an own right of the debtor or a plea which opposes the claimant's right. Examples include the commingling of cash received by the claimant or the debtor's acquisition of a right in rem to retain the asset.
77 The contesting creditor regularly finds herself in a difficult situation. She has to conduct a lawsuit on the legal relationship between the debtor and the claimant, the circumstances of which she usually does not know or knows only superficially. In practice, litigation usually arises when the creditor suspects fraudulent conduct, especially when the debtor and the claimant are personally or legally related. In practice, the evidence needed to conduct the lawsuit usually comes from other civil or criminal proceedings.
78 Arguments frequently invoked by the creditor in practice are:
The invocation of (formal) ownership is abusive of rights, which is why an economic approach must take the place of a legal one. If legal entities are involved, the asset is included in the attachment in such cases with the help of a pass-through. If assets of a private person are to stand in for a debt of a legal entity, this is referred to as direct enforcement. If a company's assets are to be used as the enforcement substrate for a debt of a natural person, this is known as reverse seizure. In both cases, it is a prerequisite that (1) the company is controlled by the natural person and (2) the invocation of legal independence appears to be an abuse of rights. This is the case, for example, if the assets of the company and the individual are mixed. Whether the requirements for a pass-through are met depends to a large extent on the individual case. A pass-through is usually successful if the debtor's conduct appears fraudulent. In the case of private individuals, the assets held by a third party can be seized in particular if the third party merely acts as a straw man and holds the asset on behalf of the debtor.
The legal transaction (e.g. the pledge) between the debtor and the claimant is invalid because, for example, it is simulated, immoral or unlawful. The latter is the case, for example, if the pledge (in the context of a banking transaction) served to evade taxes or to launder money and this was apparent to the other party.
In the absence of a pledged claim, there is also no lien.
The acquisition of the better right by the claimant is paulian contestable.
The legal transaction in question was carried out only after the attachment and is therefore invalid vis-à-vis the creditor (cf. Art. 96 para. 2 SchKG).
7. Joint litigation
79 In opposition proceedings, the claimant on the one side and the debtor/creditor on the other side are opposed. It is therefore questionable whether debtor and creditor(s) can or must sue jointly (or whether they can or must be sued jointly).
80 According to the general opinion, a case of simple joint litigation exists in the case of opposition actions: I.e., several persons can sue and be sued together, because, as a rule, there is a factual connection within the meaning of Art. 71 CCP. In contrast, Jeandin assumes that there is a (non-proper) necessary joinder of parties. This view seems convincing: If the same better right is at stake, it cannot be protected in one proceeding and denied in a parallel proceeding. The situation is thus similar to Art. 260 SchKG. The creditor(s) and debtor(s) do not have to conduct the proceedings uniformly, but the better right must be decided uniformly. If separate lawsuits are filed, they must be united according to Art. 125 lit. c CCP.
8. Notice of dispute
81 Proclamation of a dispute pursuant to Art. 78 CCP is possible, but hardly relevant in practice. The same applies to the subsidiary intervention and the notice of dispute.
9. Effect of the Judgment
82 If the claimant wins, the now established better right is taken into account in the enforcement proceedings. If, on the other hand, the creditor or debtor prevails, the asset value without the asserted right remains in the compulsory enforcement proceedings. If the debtor was a party to the opposition proceedings, all petitioning creditors benefit. This also applies if creditors participated in the proceedings at the same time. If one or more creditors participated in the proceedings (but not the debtor), the proceeds of the liquidated asset or the surplus proceeds obtained due to the lapsed right shall serve to satisfy their claims. In this case, any surplus remains with the losing claimant, i.e. only those creditors who conducted the opposition proceedings benefit.
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