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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- 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
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- 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
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
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- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
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- Art. 37 PRA
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- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- 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
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- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
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- 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. General
- II. Keeping of minutes and registers (para. 1)
- III. Evidential value (para. 2)
- IV. Correction (para. 3)
- Bibliography
I. General
1Article 8 SchKG governs the keeping of minutes and registers by the debt enforcement and bankruptcy offices as well as the probative value of such minutes and registers. It also applies to atypical bodies such as the extraofficial bankruptcy administrator elected by creditors (Art. 241 SchKG), the administrator in composition proceedings (based on Art. 295 para. 3 SchKG) and the liquidator (Art. 320 para. 3 SchKG).
2In its present form, Art. 8 SchKG has existed since the revision of the SchKG in 1994; prior to that, the content of Art. 8 SchKG and the right of inspection under Art. 8a SchKG were regulated jointly in Art. 8 aSchKG.
3Specifications of Art. 8 SchKG can be found in the VABK as well as in the VFRR and the KOV.
II. Keeping of minutes and registers (para. 1)
A. Purpose and scope of application
4The purpose of the obligation to keep minutes and registers is to ensure that the debt enforcement and bankruptcy proceedings can be monitored at all times and that the actions taken can be traced. Accordingly, offices are required under Art. 1 VABK to keep the files clearly organized and together. In this way, the minutes and registers also help the supervisory authorities to establish the facts of the case (cf. Art. 20 para. 2 no. 2 SchKG) and thus to fulfill their supervisory function.
5 The duty to keep minutes and registers applies on the one hand to official activities and on the other to requests and declarations received. The term "official activities" includes all actions by the office that are carried out in relation to a pending debt collection or an ongoing bankruptcy. For example, issued payment orders and bankruptcy threats must be included in the files and executed seizures must be recorded.
6Any oral or written submissions by the parties in connection with debt enforcement or bankruptcy proceedings shall be deemed to be requests and declarations. Since the contents of the party's requests and declarations are not covered by the evidentiary value according to Art. 8 para. 2 SchKG, they do not have to be recorded in detail; rather, it is sufficient to document when, where and to whom declarations relevant under debt collection law were made.
7 Requests for information pursuant to Art. 8a SchKG and the information provided in this context are not covered by Art. 8 para. 1 SchKG. Although in practice such requests are often kept for a reasonable period of time and may be inspected by the debtor in this case, there is no obligation to keep minutes and registers in this respect.
B. Minutes and Registers
8The keeping of registers by debt collection offices is specified in the VFRR. According to Art. 8 para. 1 VFRR, the following books are provided for: The Receipt Register (Art. 9 VFRR), the Debt Collection Register (Art. 10 VFRR), the Group Register (Art. 11 VFRR), the Register of Persons (Art. 12 VFRR), the Diary and Agenda (Art. 13 VFRR), the Cash Register (Art. 14 VFRR) and the Current Account Register (Art. 15 VFRR).
9The debt collection ledger is of particular importance. All debt collection proceedings are entered in it in the order in which the debt collection requests are received. In particular, the type of debt collection, the name of the debtor and the creditor, the amount of the claim including interest and the date of receipt of the debt collection request are recorded (Art. 10 VFRR). The debt collection register also records "silent" debt collections, i.e. those where the debt collection request is withdrawn before the order for payment is issued, so that they do not result in an entry in the debt collection register.
10 The keeping of registers by bankruptcy offices is regulated by the KOV. The following registers and books are to be kept by the bankruptcy offices pursuant to Art. 1 KOV: The register of bankruptcies and requests for legal assistance (Art. 4 KOV), the cash book (Art. 16 KOV), the current account book (Art. 17 f. KOV) and the balance sheet book (Art. 19 KOV).
11 These registers and books must be kept in accordance with the models set out in the Annex to the KOV (Art. 3 para. 1 KOV). The cantons may permit or even prescribe other forms (Art. 3 para. 2 KOV).
C. Type and duration of storage
12The manner in which debt enforcement and bankruptcy files are kept is governed by the VABK. In principle, the (original) files must be retained. However, with the consent of the cantonal supervisory authority, the records may also be kept in electronic form (Art. 4 para. 1 VABK, Art. 15a para. 1 KOV, Art. 8 para. 2 VFRR). The original files may be destroyed in this case.
13 With regard to the duration of storage, Art. 2 para. 1 VABK provides that the files of settled debt enforcement proceedings may be destroyed ten years after they have been settled. All debt enforcement proceedings that have either been formally concluded or cannot be continued by an ordinary request of the creditor - namely by a request for continuation - are deemed to have been settled. The debt collection books and the associated registers of persons, on the other hand, must be kept for 30 years from their conclusion (Art. 2 para. 2 VABK).
14 With regard to the bankruptcy files, the VABK refers in Art. 5 to the KOV. According to Art. 14 KOV, the files of completed bankruptcies may be destroyed after ten years from their completion, the cash books together with supporting documents, the current account books and balance sheet books after ten years from their completion. The bankruptcy register, on the other hand, which contains basic information such as the opening of bankruptcy proceedings, the nature of the bankruptcy proceedings and the termination of the bankruptcy, must be retained for 40 years from the date of its completion (Art. 14 para. 2 KOV).
III. Evidential value (para. 2)
A. Effect
15 Pursuant to Art. 8 para. 2 SchKG, the minutes and registers under debt collection law are conclusive of their content until the contrary is proven. They therefore have the heightened probative force of public documents (cf. Art. 9 CC and Art. 179 CPC). However, the minutes and registers do not enjoy public faith; neither do the entries have constitutive (positive or negative) effect nor are they fictitious for third parties acting in good faith.
16 Rather, Art. 8 para. 2 SchKG establishes a rule of evidence: The content of minutes and registers under debt collection law is deemed to be proven as long as it is not shown to be incorrect. In other words, the accuracy of debt collection records and registers is rebuttably presumed.
17This presumption can only be rebutted by proof to the contrary in the sense of main evidence - and not by mere counter-evidence. The proof of the contrary consists in the proof of the incorrectness of the contents of the relevant protocol or register. This proof is not bound to any special form and can be carried out accordingly with all means of evidence (cf. Art. 9 para. 2 CC).
B. Scope of application
18The probative value of minutes and registers under debt collection law applies to all minutes and registers used by the debt enforcement or bankruptcy office. However, only the actual content that records official acts or has been perceived by the debt enforcement or bankruptcy official himself is covered. The probative value thus relates primarily to when, where and by whom certain statements were made.
19 In contrast, the content of mere party statements or declarations that have been recorded or included in the files are not covered by Art. 8 para. 2 SchKG. Likewise, the probative value does not extend to assertions that do not result from minutes or registers. Quite fundamentally, the absence of a particular entry does not lead to the presumption that the corresponding act did not take place.
IV. Correction (para. 3)
20Register and record entries must be corrected by the debt enforcement or bankruptcy office if they are incorrect. This correction must be made in due form and free of charge. Art. 8 para. 3 SchKG covers not only debt collection offices but also bankruptcy offices (cf. Art. 20 KOV) as well as all other authorities and bodies entrusted with the keeping of minutes or registers.
21 Only errors made by debt enforcement or bankruptcy offices or by the corresponding body keeping the minutes or register are subject to correction. Such an error is deemed to be, for example, the entry of an incorrect order in the entry register or the entry of a claim amount in the debt collection register that does not correspond to that in the debt collection request. However, if the fault for an alleged error lies not with the debt collection office but with the creditor, there is no room for correction; for the debt collection office does not act erroneously if it takes over incorrect information from a creditor.
22The competent authorities are obliged to make corrections ex officio. If an authority refuses to make the correction, the person concerned may appeal under debt collection law (Art. 17 SchKG).
Bibliography
Baumgartner, Samuel, Die Betreibungsregistereinsicht zum Zweck des Kreditschutzes, in: Portmann Wolfgang/Heiss Helmut/Isler Peter R./Thouvenin Florent (Hrsg.), Gedenkschrift für Claire Huguenin, 2020, S. 29.
Hunkeler Daniel/Wuffli Daniel, Verjährungsunterbrechung durch «stille Betreibung»? in: Jusletter 11. September 2017.
Kren Kostkiewicz Jolanta, Orell Füssli Kommentar (OFK), SchKG Kommentar, 20. Aufl., Zürich 2020.
Möckli Urs, in: Hunkeler Daniel (Hrsg.), Kurzkommentar SchKG, 2. Aufl., Basel 2014 (zit. KUKO SchKG-Möckli).
Peter James T., in: Staehelin Daniel/Bauer Thomas/Lorandi Franco (Hrsg.), Basler Kommentar Bundesgesetz über Schuldbetreibung und Konkurs, 3. Aufl. Basel 2021 (zit. BSK SchKG-Peter).
Rosenkranz Charlotte, in: Orell Füssli Kommentar (OFK), ZGB Kommentar, Schweizerisches Zivilgesetzbuch, 4. Aufl., Zürich 2021 (zit. OFK ZGB-Rosenkranz).
Weingart Denise, in: Kren Kostkiewicz Jolanta/Vock Dominik (Hrsg.), Schulthess Kommentar zum Bundesgesetz über Schuldbetreibung und Konkurs SchKG, 4. Aufl., Zürich 2017 (zit. SK SchKG-Weingart).