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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
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
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Certificate of insolvency after bankruptcy
- II. Exception based on non-return to better fortune
- Bibliography
- Matériaux
I. Certificate of insolvency after bankruptcy
A. Concept
1 The certificate of insolvency after bankruptcy is a certificate bearing the seal of public authority within the meaning of Art. 8 para. 2 LP, issued at the end of bankruptcy proceedings by the bankruptcy administration to each creditor who has not been fully repaid at the end of ordinary bankruptcy proceedings (Art. 221 ff. LP) or summary proceedings (Art. 231 LP; see N. 5 in the event of suspension of bankruptcy due to lack of assets). It specifies and certifies the amount of each definitively lodged claim that is not covered by the proceeds of liquidation, including collection costs and interest accrued up to the date of the opening of bankruptcy proceedings (Art. 209 LP). It allows creditors who have suffered a loss to bring new proceedings against the bankrupt debtor in order to obtain the balance of their claims (see N. 17; N. 22 ff. for the condition of a return to better fortune in order to continue such proceedings).
2 The right to obtain a certificate of insolvency after bankruptcy belongs to any creditor of a natural or legal person who has filed their claim within the filing period during the call to creditors (Art. 232 para. 2 no. 2 LP) and whose claim has not been definitively rejected. Privileged creditors have a corresponding right, in particular maintenance creditors who, although ranked in the first class according to Art. 219 para. 4 let. c LP, have not been paid in full. This right also exists for pledgees; a certificate of insufficient collateral pursuant to Art. 158 LP is not issued at the end of the bankruptcy proceedings for this category of creditors (see Art. 219 para. 1 LP for the preferential right of pledgees to the proceeds of realization; cf. Art. 89 para. 2 ORFI for the enforcement of a pledge against the third-party owner in the event of the disappearance of the legal entity following bankruptcy). The creditor of a deceased or absent debtor is also entitled to the issuance of a certificate of insolvency. Where applicable, the death or absence must be expressly mentioned in the certificate. Creditors whose claim is subject to a condition precedent or whose maturity date is uncertain within the meaning of Art. 264 para. 3 LP shall only receive a certificate of insolvency when their claim arises. As bankruptcy has the effect of making the bankrupt party's debts that are not yet due and payable become due and payable (Art. 208 para. 1 LP), an “ordinary” certificate of insolvency will be issued for claims that were not yet due and payable before the commencement of bankruptcy proceedings.
3 The issuance of the certificate of insolvency is concurrent with the distribution of any dividends to creditors (see Art. 266 LP for the distribution of provisional dividends). It takes place automatically, without the need for a request from the creditors, as soon as the amount of the loss has been established and the bankruptcy administration has ensured that no appeal has been lodged against the distribution table (Art. 88 OAOF) . It may be issued in electronic format. A complaint may be lodged within the meaning of Art. 17 LP if the office refuses, delays or fails to issue the certificate of insolvency. The costs of drawing up and issuing the certificate are included in the bankruptcy liquidation costs (Art. 262 para. 1 LP). In the event of loss, the office shall issue a duplicate upon reasoned request by the creditor.
4 Statistics on the number of bankruptcy proceedings opened in Switzerland and in each canton are available on the website of the Federal Statistical Office. In Switzerland, 1,425 bankruptcies were opened in 2024 involving private individuals and 7,743 involving insolvent legal entities (<https://www.bfs.admin.ch/ bfs/en/home/statistics/catalogues-databases.assetdetail.34907026.html>, accessed on 20.10.2025). In accordance with Art. 8 Oform a contrario, the cantons have the option but not the obligation to keep a register of certificates of insolvency. As a result, cantonal statistics on the number of certificates of insolvency issued are not always available.
5 The certificate of insolvency is not issued to the creditor if the debtor has not been declared bankrupt, if the ordinary or summary bankruptcy proceedings have not yet been completed, for debts in the bankruptcy estate, in the theoretical case where the proceeds of liquidation are not sufficient to cover the costs of the proceedings to be covered in the first instance (Art. 262 para. 1 LP) or when bankruptcy is suspended due to lack of assets (Art. 230 LP). In the latter case, proceedings initiated before the opening of bankruptcy proceedings are resumed after the suspension of bankruptcy (Art. 206 and 230 para. 4 LP). Creditors then have the option of pursuing the debtor by way of seizure within two years of the suspension of liquidation (Art. 230 para. 3 LP), in which case they will obtain a certificate of insolvency after seizure (see N. 11 ff. for the differences with the certificate of insolvency after bankruptcy). The question of whether this option is also available to creditors of a legal entity whose bankruptcy has been suspended due to lack of assets is controversial. In my view, the answer is negative in most cases. Art. 159a para. 1 let. a ORC prescribes the automatic deregistration of a legal entity whose bankruptcy has been suspended due to lack of assets if no reasoned objection has been lodged within the aforementioned two-year period. Art. 230 para. 3 LP is therefore only applicable in rare cases where the legal entity has not been deleted or has been re-entered in the commercial register (e.g., if new assets are discovered). Special notices to creditors concerning the filing of the distribution table and listing the claims admitted to the statement of claims by the bankrupt debtor do not constitute acts of insolvency after bankruptcy within the meaning of Art. 265 para. 1 LP either.
6 Claims that have not been filed within the time limit specified in Art. 232 para. 2 ch. 2 LP or late in accordance with Art. 251 LP are treated in the same way as those certified by a certificate of insolvency and are subject to the same restrictions (Art. 267 LP). They no longer bear interest. Enforcement is conditional on the debtor's return to better fortune (see OK-Constantin, Art. 267 LP N. 10) . Even after the complete distribution of the bankrupt debtor's assets, the (late) creditor may have an interest in the collocation of their claim in order to preserve the rights provided for in Art. 265 and 269 LP, in particular the right to the issuance of a certificate of insolvency.
B. Effects
1. Similarities with the certificate of insolvency after seizure
7 The effects of the certificate of insolvency after bankruptcy are governed by Art. 265 para. 1 and 2 LP. This article refers in part to the legal effects of the certificate of insolvency after seizure (Art. 265 para. 2, 1st sentence LP and the reference to Art. 149 para. 4 and 149a LP).
8 As with the certificate of insolvency after seizure, the claim no longer bears interest (Art. 149a para. 4 LP in conjunction with Art. 265 para. 2 LP; see N. 6) and is time-barred with regard to the bankrupt debtor for twenty years from the date of issue of the certificate of insolvency (Art. 149a para. 1 LP in conjunction with Art. 265 para. 2 LP) and for one year from the opening of the estate with regard to the heirs of the bankrupt (Art. 149a para. 1 LP in conjunction with Art. 265 LP and Art. 586 para. 2 and 567 CC, which provide for a suspension of the limitation period during the taking of inventory or the period of renunciation). Once the limitation period has expired, the certificate of insolvency no longer has any effect. However, Art. 127 ff. CO and the ordinary limitation periods remain applicable to the co-obligors and guarantors of the bankrupt debtor, who are not affected by the special time limits of Art. 149a para. 1 LP. The limitation period is calculated in accordance with Articles 76–78 and 132 CO and may be interrupted by the means provided for in Article 135 CO.
9 Possession of a certificate of insolvency also constitutes a case of seizure (Art. 265 para. 2 i.i. and 271 para. 1 no. 5 LP; see N. 25 ff. for the criterion of return to better fortune; see also Art. 265a LP N 9). A request for sequestration is one of the enforcement measures that may interrupt the limitation period within the meaning of Art. 135 para. 2 CO, unless the sequestration is invalid.
10 Finally, the reference in Art. 265 para. 2 LP also concerns the cancellation of the certificate of insolvency. According to Art. 149a para. 2 LP, in conjunction with Art. 265 para. 2 LP (N. 7), the debtor may at any time redeem the certificate of insolvency by paying all or part of the debt to the office that issued the certificate. In this case, the office transfers the amount to the creditor or deposits it with the deposit and consignment office. The certificate of insolvency is deleted from the register of certificates of insolvency kept by the office if the entire debt has been paid by the bankrupt debtor (Art. 149a para. 3 LP in conjunction with Art. 265 para. 2 LP) and provided that such a register exists (cf. Art. 8 Oform a contrario; N. 4). The deleted entry shall be notified to the bankrupt debtor upon request (Art. 149a para. 3 LP in conjunction with Art. 265 para. 2 LP). If the certificate of insolvency is not entered in the debt enforcement register, in which only debt enforcement proceedings are entered with an indication of their outcome in accordance with Art. 10 Oform, the office cannot delete the entry of the certificate of insolvency in this register. The Federal Court recently clarified that a certificate of insolvency after seizure produced in bankruptcy and subject to a certificate of insolvency after bankruptcy must not be included in the section “Certificates of insolvency following seizure not extinguished in the last 20 years” of the debt collection register. Only the balance owed resulting from certificates of insolvency after seizure that were not produced in bankruptcy proceedings must be mentioned therein.
2. Differences with the certificate of insolvency after seizure
11 Due to the intrinsic differences between the nature of seizure (special enforcement) and bankruptcy (general enforcement), the certificate of insolvency after bankruptcy differs from the certificate of insolvency after seizure in the following five respects.
12 First, it does not constitute acknowledgment of debt within the meaning of Art. 82 LP, and therefore as a provisional release order, only if the claim has been acknowledged by the debtor during the verification of claims, regardless of whether the claim has been collated by the bankruptcy administration or is the subject of a court decision ruling on its collation within the meaning of Art. 250 LP (Art. 265 para. 1, 3rd sentence, and 244, 2nd sentence, LP, Art. 55 OAOF). For this reason, each certificate of insolvency states whether the certified claim has been acknowledged or contested by the bankrupt debtor. A certificate of insolvency that fails to state, even after the right to contest the ranking of claims has become known, whether the bankrupt debtor acknowledges or contests the claim does not constitute an acknowledgment of debt. The situation is different in the case of seizure, a procedure which in principle requires the pursuing creditor to continue the proceedings by issuing a payment order (art. 88 ff. LP; art. 149 para. 3 LP for exemption from payment order). In seizure proceedings, acknowledgment by the debtor is without effect and the certificate of insolvency constitutes acknowledgment of debt in accordance with the provisions of Art. 149 para. 2 LP.
13 If the bankrupt debtor contests the claim, the certificate of insolvency only proves that the bankruptcy administration or a court decision has admitted the claim against the bankrupt debtor's notice (see Art. 245 and 250 LP) . In this case, the creditor may nevertheless request and obtain relief on the basis of the other grounds for relief listed in Articles 80 to 82 LP; the debtor retains his means of defense within the meaning of these articles. If the claim is based on an enforceable judgment within the meaning of Art. 80 LP, it is in the creditor's best interest to invoke it directly, without mentioning the certificate of insolvency in the request for enforcement (OK-Constantin, Art. 265a LP N. 7), in order to request definitive release in the event of opposition.
14 Even if the debtor has acknowledged the debt in the bankruptcy proceedings, the debtor retains the right to dispute the claim in subsequent proceedings by bringing an action for debt relief (Art. 83 para. 2 LP) or an action for annulment of the debt enforcement proceedings (Art. 85 et seq. LP). In fact, his “acknowledgment” constitutes an acknowledgment of debt without constituting one in the technical sense of the term, since the debtor does not intervene in the establishment of the certificate of insolvency and does not issue a declaration of intent concerning the substance of the right.
15 The acknowledgment of the claim by the debtor does not constitute strict proof of its existence, but only a rebuttable presumption of its existence. However, the certificate of insolvency after bankruptcy (like the certificate of insolvency after seizure) does not entail novation of the debt within the meaning of Art. 116 CO, nor does it create a new legal relationship that would duplicate the old one and give rise to a separate right of action.
16 A certificate of insolvency for a public law claim is therefore not a provisional release order, as there is no change in the nature of the claim (N. 15). The fiscal nature of the claims mentioned in the certificate of insolvency does not change. In this case, the (definitive) release order remains the decision or judgment on which the public law claim is based.
17 Secondly, after bankruptcy, new enforcement proceedings are necessary in view of the extinction of the bankrupt's enforcement proceedings within the meaning of Art. 206 para. 1 LP and in order to comply with the moratorium period intended by the legislator in favor of debtors who have been subject to general enforcement proceedings (N. 23). The initiation of new proceedings is conditional upon the service of a payment order, as Art. 265 para. 2 LP does not refer to Art. 149 para. 3 LP (see Art. 69 para. 2 LP for the content of the payment order). The exemption from the order to pay within the meaning of Art. 149 para. 3 LP (N. 12) in favor of the creditor who continues the proceedings within six months of receiving the certificate of insolvency applies exclusively after seizure proceedings. It does not apply in the event of bankruptcy.
18 Thirdly, the bankrupt debtor has the right to oppose the payment order by invoking the exception of non-return to better fortune in accordance with the procedure prescribed by Art. 265a LP (OK-Constantin, Art. 265a LP N. 2 ff.). Once the bankruptcy proceedings have been closed, new proceedings may be initiated at any time. It will only be successful and can only be continued if the debtor has regained financial standing (Art. 265 para. 2 and 265a–b LP). The debtor therefore has an interest in the creditor obtaining a certificate of insolvency in order to oppose the debtor's failure to recover financially in subsequent proceedings. The situation is different when the proceedings are based on a certificate of insolvency after seizure, in which case the debtor may raise “ordinary” defenses to contest the claim under Art. 80 ff. LP, but not the exception of non-return to better fortune (OK-Constantin, Art. 265a LP N. 38 ff.).
19 When a new debt enforcement proceeding initiated after bankruptcy and carried out by way of seizure is totally or partially unsuccessful, the effects of the certificate of insolvency after bankruptcy remain valid. Some French-speaking authors consider, on the basis of an old Federal Court ruling written in Italian, that in this case the office issues a new certificate of insolvency after seizure with the express mention that the balance of the claim relates to a certificate of insolvency after bankruptcy. German-speaking authors are of the opinion that the office should limit itself to correcting the amount mentioned on the pre-existing certificate of insolvency after bankruptcy without issuing a certificate of insolvency after seizure. I am convinced by the latter opinion. It has the advantage of avoiding any confusion as to the nature of the certificate of insolvency. The situation differs from that in which assets that escaped liquidation are discovered after the closure of the bankruptcy (Art. 269 LP). In the latter case, the certificates of insolvency must be returned to the bankruptcy administration before the proceeds are distributed in order to be reduced accordingly. The certificate of insolvency will remain valid for the corrected amount (Art. 150 para. 2 by analogy LP).
20 Fourthly, only the bankruptcy administration (or possibly one or more assignee(s) within the meaning of Art. 260 LP) is entitled to bring an action to set aside (Art. 285 para. 2 LP). This action cannot be brought in its own name and on its own behalf by the creditor holding a certificate of insolvency after bankruptcy, even if the revocable act is discovered after the bankruptcy has been closed (Art. 269 para. 3 and 285 para. 2 ch. 1 a contrario LP). The certificate of insolvency therefore does not confer on its holder the rights mentioned in Art. 285 LP, contrary to what prevails in the case of unsuccessful seizure (Art. 149 para. 2 i.f. LP). In the event of assignment of rights within the meaning of Art. 260 LP, the assignee creditor shall only receive a certificate of insolvency after informing the office of the outcome of the proceedings and provided that they have not been paid in full (N. 1).
21 Fifthly, the dies a quo of the limitation periods that can be invoked against actions against third parties for damage to the creditor runs from the date of the declaration of bankruptcy and not from the date of delivery of the certificate of insolvency (for an example, see Art. 52 LAVS concerning the pension fund's action against the administrators).
II. Exception based on non-return to better fortune
A. General
22 A bankrupt debtor who has not been removed from the commercial register (natural person) regains free disposal of their assets after the bankruptcy proceedings have been closed. Creditors holding certificates of insolvency after bankruptcy (Art. 265 LP) or those who did not participate in the bankruptcy proceedings (Art. 267 LP) may then initiate new proceedings for a claim prior to the bankruptcy. Such proceedings may only be continued on condition that the bankrupt debtor has regained financial standing or does not oppose the proceedings by contesting their regained financial standing (N 18; Art. 265a LP N 2 ff.; cf. Art. 80 ff. LP for the lifting of “ordinary” opposition). The exception can only be invoked by the former bankrupt debtor (Art. 265a LP N 2). Their heirs who have accepted the inheritance cannot invoke it and may be prosecuted on the basis of a certificate of insolvency after bankruptcy issued against the de cujus (OK-Constantin, Art. 265a LP N. 2 i.f.) .
23 The purpose is to enable the bankrupt debtor to recover, i.e., to build a new life after bankruptcy without constantly fearing prosecution. Conversely, it makes it possible to settle claims if the debtor has recovered financially after bankruptcy by avoiding squandering their net assets (N. 28). The rule has the effect of favoring those who became creditors of the debtor after bankruptcy, against whom the exception of non-return to better fortune is not admissible. 24 The exception of non-return to better fortune cannot be invoked by a debtor whose bankruptcy has been suspended due to lack of assets. return to better fortune is not admissible.
24 The exception of non-return to better fortune may not be invoked by a debtor whose bankruptcy has been suspended due to lack of assets (Art. 230 LP; N. 5). In this case, the bankruptcy is closed without a certificate of insolvency being issued to the creditors, with the result that the proceedings are resumed (Art. 230 para. 4 LP). The exception is also not admissible in the case of a foreign claim relating to proceedings opened and settled abroad without any connection to a Swiss bankruptcy (see Art. 166 LDIP; OK-Constantin, Art. 265a LP N. 11).
B. Determination of the “best fortune”
25 Art. 265 para. 2 LP specifies that the assets economically available to the debtor are considered to be the best fortune (see N. 31–32). The “best fortune” is not defined by law. The concept is governed by federal law. It constitutes the difference between the assets acquired after the bankruptcy and which exceed the new liabilities, excluding the debts that were the subject of the previous bankruptcy. The former bankrupt has regained better fortune if, at the time of the commencement of proceedings, he or she has, alone or with his or her spouse, in addition to a new economic existence, accumulated savings that constitute a new net asset enabling him or her to reintegrate into society and lead a new life in accordance with his or her personal aspirations. It is not sufficient for the bankrupt debtor's resources to exceed the minimum subsistence level set out in Art. 92 and 93 LP without constituting net assets that allow him or her to save.
26 Property and assets (e.g., inheritance, lottery winnings, or life insurance benefits) that accrue to the former bankrupt debtor after the closure of the bankruptcy proceedings are likely to constitute new net assets. Income from work is also a net asset if it exceeds the amount necessary for the debtor to lead, at the time of the review, a lifestyle in keeping with his circumstances and to enable him to save, after deduction of any “emergency reserve” that may be taken into account under cantonal practice (see also N. 29). The same applies to income from a sole proprietorship or even the debtor's sole source of income.
27 New income from work is seizable up to the minimum subsistence level, without applying a second-tier minimum subsistence level, when the debtor is considered to have regained financial standing. The former bankrupt debtor is thus treated on an equal footing with all other debtors by the office called upon to determine the attachable portion after the right to know of the existence of new assets (Art. 265a LP; N. 34). In the context of the subsequent seizure procedure, the return to better fortune is therefore no longer relevant.
28 According to the principle of theoretical hoarding, income may be seized regardless of whether the debtor has actually hoarded it, in particular if he has spent it abusively and with the recognizable intention to harm creditors holding certificates of insolvency after bankruptcy. In principle, the judge determines the extent of the improved financial situation by capitalizing the debtor's income during the twelve-month period preceding the request for enforcement, i.e., by calculating the average income earned during the relevant period. When the new enforcement takes place less than one year after the bankruptcy, the relevant period for calculating the theoretical accumulation remains one year from the filing of the enforcement request; the debtor's income does not fall within the estate. The question of whether seizure is possible with retroactive effect until the closure of the bankruptcy liquidation that gave rise to the issuance of the certificate of insolvency is controversial. Seizure with retroactive effect should be possible in cases of abusive squandering in order to take account of the specific circumstances. The Federal Court has not yet been seized of such a case, with case law sticking to capitalization for the year preceding the request for enforcement. In a case of theoretical hoarding, the debtor's assets are often insufficient to satisfy the creditors. The seizure will then apply to future income, i.e., for a period of up to one year, taking into account the time limit set by Art. 93 para. 2 LP. The attachment of the relevant monthly amount will take place during the coming year in accordance with the aforementioned article. In the event of a decrease in income during the period concerned, the office will, upon request, adjust the attachment by means of a decision that may be appealed under Art. 17 LP.
29 The threshold for a return to better fortune is calculated by taking into account the basic amount for calculating the minimum subsistence level and adding to it the essential expenses according to Art. 93 LP, unavoidable expenses, usual costs, and an allowable supplement according to the criterion of a lifestyle in keeping with the debtor's current situation, enabling them in particular to save. This additional amount is to be estimated at the discretion of the judge after an individual assessment of each situation and cannot depend on schematic criteria established by the cantons. The use of statistics to reflect changes in wages or the cost of living is excluded. Cantonal practices that uniformly took into account a certain additional percentage (50%, 66.6% or even 100%) of the basic amount of the minimum subsistence level for all debtors in the canton were deemed arbitrary by the Federal Court. However, a “limited flat rate” is permitted, in particular if the judge sets the additional amount as a percentage (e.g., 50% or 66.6% ) applied to the basic amount of the minimum subsistence level after assessing the particular circumstances of the case. Where the expenses of the debtor and his or her family have been calculated broadly to take account of their lifestyle, the Federal Court considers that it is excessive to double the basic amount by applying a 100% supplement and has reduced the increase to 50%. Case law also allows for travel and representation expenses to be taken into account when these expenses include, in particular, meal or clothing expenses related to basic maintenance items. Compensation paid by the employer that is used solely to cover the debtor's office rent, secretarial or operating expenses is not income and must be excluded from the calculation. Where the debtor has a spouse or registered partner, the threshold for a return to better fortune is determined according to the rules for determining the minimum subsistence level of a married debtor.
C. Prevention of the risk of abuse
30 In combination with the declaration of insolvency (Art. 191 LP), the exception of non-return to better fortune presents a potential for abuse. The 1994 revision introduced two measures to prevent this risk, by allowing the seizure of third-party assets under certain conditions (infra 1) and by requiring a judge to decide on the admissibility of the objection on the grounds of no return to better fortune (infra 2).
1. Seizability of assets belonging to a third party
31 The assessment of a return to better fortune now takes into account the assets that the debtor has at their economic disposal (Art. 265 para. 2 i.f. LP). The aim is to prevent abuse of rights by taking into account the objective criterion of economic reality in order to prevent the former bankrupt debtor from building up a new fortune in the name of a third party (spouse, parent, etc.) while acting as the true owner of that fortune. The judge may thus declare assets belonging to a third party to be attachable when the former bankrupt debtor has economic control over them and the third party's right was established with the intention, recognizable by the third party, of preventing the return to better fortune (Art. 265a para. 3, 2nd sentence LP; see OK-Constantin, Art. 265a LP N. 32 ff.). However, pursuant to Art. 95 para. 3 LP, such assets are only subject to seizure on a subsidiary basis if the debtor has no own assets that can be seized (OK-Constantin, Art. 265a LP N. 35). For example, assets acquired in the name of the separated spouse of the former bankrupt debtor, who manages a new business on her behalf, are subject to seizure.
32 According to some legal scholars, it is not necessary for the debtor's conduct to constitute an abuse of rights within the meaning of Art. 2 para. 2 CC in order to seize assets that belong to him economically. The case law, with which I agree, seems to stick to the fact that Art. 265 para. 2 i.f. LP gives concrete expression to the prohibition of abuse of rights. The same applies to the Message of May 8, 1991, in which the Federal Council describes Art. 265 para. 2 LP as giving concrete expression to the prohibition of abuse of rights. In my opinion, the seizure of third-party assets is therefore only possible if the conditions of Art. 2 para. 2 CC are met.
33 The third party is not a party to the proceedings in which the admissibility of the objection on the grounds of improved financial circumstances is examined by the judge. During the seizure phase, the third party must therefore assert its rights by means of a claim (Art. 106 to 109 LP; OK-Constantin, Art. 265a LP N. 37).
2. Role of the judge
34 The revision has also improved the position of the creditor in the proceedings. Indeed, the opposition for non-return to better fortune must be declared admissible by the judge (Art. 265a para. 2 and 3 LP; see specifically OK-Constantin, Art. 265a LP N. 17 ff.).
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Matériaux
Message concernant la revision de la loi fédérale sur la poursuite pour dettes et la faillite du 8 mai 1991, FF 1991 III 1, disponible sur https://www.fedlex.admin.ch/eli/fga/1991/3_1_1_1/fr, consulté le 6.3.2025.