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- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
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- Art. 701 CO
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- 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
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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
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- Art. 31 para. 2 lit. e FADP
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- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
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- Art. 47a FADP
- Art. 48 FADP
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- Art. 50 FADP
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- 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)
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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. Persons entitled to inspect
- III. Providing proof of interest
- IV. Subject Matter, Form and Scope of the Right of Inspection
- V. Exclusion of the right of inspection
- VI. Temporal limits
- VII. Costs
- VIII. Appeals
- Bibliography
- Materials
I. General
1 The inspection and disclosure of public law documents shall be governed by the relevant provisions of public law. In accordance with this principle, inspection of the minutes and registers of the debt enforcement and bankruptcy offices is always governed by Art. 8a SchKG. This also applies if inspection is requested in the context of pending civil proceedings.
2The FADP does not apply due to the exclusion in Art. 2 Abs. 4 FADP.
A. Purpose
3According to Art. 8a SchKG, the minutes and registers of the debt enforcement and bankruptcy offices are accessible to third parties, provided they credibly demonstrate a corresponding interest. At the center of the right of inspection is the debt collection register excerpt. The debt collection data serve to draw conclusions about the creditworthiness of a person.
4 The right of inspection under Art. 8a SchKG is thus relevant both at the pre-contractual stage, in order to check the creditworthiness of a potential debtor, and at the stage of existing debt relationships, when the question arises as to whether the collection of a debt is worthwhile. The right of inspection is therefore (also) in the public interest, as it avoids hopeless court and enforcement proceedings. In addition, the right of inspection can be helpful for the calculation of deadlines (e.g. for the attachment pursuant to Art. 110 and 111 SchKG).
5 The purpose of the right of inspection is different in the case of bankruptcy of a debtor. In this case, the debtor's inability to pay is usually evident. Here, Art. 8a SchKG serves to provide the bankruptcy creditors and third parties who have suffered damage with the information necessary to protect their rights.
B. Problems and related revisions
6The legitimate interest of third parties to inspect the records and registers of the debt enforcement and bankruptcy offices is offset by the equally legitimate interest of the (alleged) debtor that the debt enforcement data do not create the false impression of a lack of creditworthiness. Art. 8a SchKG is intended to reconcile these two interests. It is therefore not surprising that the two revisions of Art. 8 and 8a SchKG in 1994 and 2019, respectively, mainly revolved around this issue.
7On the occasion of the 1994 revision, the content of Art. 8 aSchKG was distributed between Art. 8 and Art. 8a SchKG. With regard to the interest in inspection and its limits, the revision was primarily intended to codify the case law of the Federal Supreme Court at that time. The rulings issued prior to the revision are thus still relevant.
8In contrast, the 2019 revision introduced an additional instrument, Art. 8a para. 3 lit. d SchKG, with which affected parties can defend themselves against the negative effects of unjustified debt collection. At the same time, the informative value of extracts from the debt collection register should be improved and not diluted.
II. Persons entitled to inspect
A. General
9A right to inspect the minutes and registers of the debt collection and bankruptcy offices is available to any person who can credibly demonstrate a legally sufficient interest in doing so. This interest need not be of a financial nature; a legal interest of another kind is also sufficient. The extent to which an interest in inspection is worthy of protection must be determined in each individual case on the basis of the specific circumstances and taking into account the purpose of the right of inspection. The interest worthy of protection is assessed in particular according to the person or the position of the applicant. In order to assess the right of access, a distinction must be made between the following applicants in the light of the case law of the Federal Supreme Court:
The person concerned requesting inspection of the entries relating to him/herself (hereinafter B);
the parties to a specific debt enforcement or bankruptcy proceeding who wish to inspect the records of the proceeding in question (C below);
third parties who wish to obtain information about a person, typically a (potential) debtor, outside of debt enforcement or bankruptcy proceedings (D below); and
judicial and administrative authorities who wish to inspect files in connection with proceedings pending before them (hereinafter E).
B. Person concerned
10Every person has the right to inspect all data concerning him/herself. This right is not subject to any further conditions - with the exception of the prior identity check and the fees for file inspection. In this way, any person can check at any time and without any special proof of interest whether and what information is stored about them. Self-disclosure can only be restricted in the case of overriding public or third-party interests.
C. Parties to the proceedings
11 Furthermore, the parties to debt enforcement or bankruptcy proceedings are in principle entitled to inspect the minutes and registers of the proceedings concerned. Thus, like the person concerned in the case of self-disclosure, they do not have to credibly demonstrate any additional interest; rather, their legitimate interest derives directly from their debtor or creditor position. In this context, the (potential) creditor suing for admission by means of a collocation action is also deemed to be a bankruptcy creditor.
12 The purpose of the request for inspection may also lie outside the relevant compulsory enforcement proceedings: thus, according to the Federal Supreme Court, inspection must also be granted if a bankruptcy creditor has suffered damage in the bankruptcy irrespective of his creditor position and intends to gather evidence by inspecting the bankruptcy files in order to sue a third party for the loss. The prohibition of abuse of rights is always reserved.
D. Third parties
13Any third party who can credibly demonstrate a special and present interest worthy of protection is then entitled to information. Unlike the person concerned and the parties to the proceedings, third parties cannot derive their interest from their (procedural) position, which is why their right of inspection is not given a priori. Rather, in the case of third parties, the requested debt enforcement or bankruptcy office must weigh up their interest in inspection against the interest in secrecy of the person concerned and, based on the specific interests involved, grant or refuse inspection to a certain extent. For this purpose, a corresponding proof of interest is required from the third party submitting the request.
14Pursuant to para. 2, an interest is considered to be worthy of protection in particular if the request is made in direct connection with the conclusion or performance of a contract. This provision was included in the law as part of the 1994 revision and codified the Federal Supreme Court case law according to which a sufficient interest in inspection exists both in the case of an existing contractual relationship with the debtor and in the case of an intended contractual relationship.
15Also under para. 2, however, the right of inspection does not apply without restriction. Here, there is merely a legal presumption of an interest in inspection that is worthy of protection - overriding interests in secrecy are conceivable. For example, when concluding an employment contract, there is often no connection between the creditworthiness of the potential employee and the risk to legitimate interests of the employer requesting information, which is why the employee's interest in confidentiality is likely to prevail here as a rule. Then, restrictions are possible with regard to the scope of the inspection of files.
16A legally sufficient interest in inspection will typically exist in the following constellations:
There is a legal dispute between the applicant and the person concerned. However, this - hitherto constant - case law of the Federal Supreme Court has been restricted in recent decisions with regard to bankruptcy files, with the courts relying on different arguments: According to the Zurich High Court, the right of inspection under Art. 8a SchKG in pending civil proceedings is superseded by the rules on edition in the CPC (Art. 160 et seq.). And according to the Federal Supreme Court, there is in any case no interest in inspection worthy of protection if the applicant is not at the same time a (potential) creditor of the other party.
At least for an inspection of the debt collection register, the concrete intention to file a lawsuit against the person concerned is sufficient - even outside an existing contractual relationship. This is because the applicant has a legitimate interest in checking the creditworthiness of the other party due to the legal costs incurred.
The applicant is the guarantor or jointly and severally liable party of the person concerned.
In the case of spouses, on the basis of the duty to provide information under Art. 170 of the Swiss Civil Code - regardless of whether they live together or separately.
The requesting shareholder with regard to the bankruptcy proceedings of the bankrupt company.
The person concerned is a co-heir of the applicant. The right of inspection of the co-heirs also includes registers and minutes relating to the time before the death of the decedent.
The applicant is considering a third party claim to the shares in a company which have been drawn to the bankruptcy estate. His right in this regard is to inspect the balance sheets and income statements of the company in question.
In the case of a request for inspection by the media, as long as this relates to a specific case in which there is a certain public interest. In contrast, general "press inquiries" in the sense of general requests for information on a large number of debtors are insufficient.
In the case of a fulfilled and thus concluded (purchase) contract, provided that follow-up transactions can be expected.
In the case of a request for inspection by the creditor of a bankrupt general partnership against the individual general partners, since the latter are personally liable.
17In contrast, there is no sufficient interest in inspection in the following circumstances:
If the applicant is merely in economic competition with the person concerned.
In the case of mere curiosity.
If there are no indications of business contact between the applicant and the person concerned.
In the case of unspecific requests for inspection by the media.
In the case of a mere abstract interest, e.g. to collect data on debtors.
In the case of the defendant in a liability suit raised by the bankruptcy estate, if the defendant is neither a bankruptcy creditor nor wishes to sue a third party for damages.
E. Judicial and administrative authorities
18Finally, pursuant to Art. 8a para. 4 sentence 2 SchKG, judicial and administrative authorities may request extracts from the debt enforcement and bankruptcy files in the interest of proceedings pending before them. However, this also presupposes an interest worthy of protection, whereby this usually results from the special position of the requesting authority. Thus, the Federal Supreme Court has also stated "that the judicial and administrative authorities are in principle entitled to an unconditional right to receive information concerning the situation of the debtor as it appears from the books and registers". It has not been conclusively clarified whether the pending proceedings must relate to the person concerned and whether an interest worthy of protection to inspect files is also conceivable outside of pending proceedings.
III. Providing proof of interest
19 The question of the interest in inspection worthy of protection must be distinguished from the question of the degree of proof and the manner in which this interest must be demonstrated. Before the 1994 revision, the applicant was required to prove an interest. The requirements for this proof were high: although the Federal Supreme Court, with reference to the French and Italian legal texts, already at that time allowed a prima facie case to suffice, it also required that this prima facie case be made by means of documents. In principle, the Federal Supreme Court considered only documents issued or signed by the potential debtor to be sufficient (e.g. signed loan agreements, letters of confirmation from the debtor), but not documents produced by the applicant himself (e.g. invoices and [reminder] letters from the applicant).
20In the revision of 1994, the wording of the law was adapted; the interest in inspection now only has to be explicitly shown to be credible. Art. 8a SchKG does not require documentary evidence or prima facie evidence.
21In its ruling 7B.229/2003, the Federal Supreme Court commented on this new wording of the law as follows: First, it stated that the revision was merely intended to codify the case law of the Federal Supreme Court and that nothing had changed in the legal situation (E. 4.1). Subsequently, the Federal Supreme Court stated that the prima facie case was not bound to a certain form (E. 4.2). Nevertheless, it concluded - in accordance with its previous case law - that the submission of copies of invoices was not sufficient under the new Art. 8a SchKG (E. 4.3). As a result, everything remained the same.
22 This decision was rightly criticized by the doctrine and occasionally also by the cantonal courts. However understandable the desire for a clear and simple rule for the debt collection and bankruptcy offices, the general principles on prima facie evidence should nevertheless also apply to Art. 8a SchKG. A fact is deemed to have been made credible if the court, in a free review of the submissions, comes to the conclusion that it is true with a certain degree of probability. A fact is thus prima facie established if certain elements speak in favor of its existence, even if the court still reckons with the possibility that it may not have materialized.
23 Both a contract offer not (yet) signed by the person concerned or an unsigned order form and invoices addressed to the person concerned may suffice in individual cases to make an interest worthy of protection credible - provided that sufficient credibility results from the overall circumstances. Particularly in the case of a verbally concluded contract, the creditor is dependent on the presentation of invoices entitling him to inspect them, since the debtor - in contrast to the situation prior to the conclusion of the contract - will hardly be willing to obtain and present an extract from the debt collection register himself.
IV. Subject Matter, Form and Scope of the Right of Inspection
A. Subject matter
24 Contrary to the wording of Art. 8a para. 1 SchKG, the right of inspection covers not only minutes and registers, but all files and documents of debt enforcement or bankruptcy proceedings. Thus, the right of inspection in debt enforcement proceedings extends, for example, to seizure records and the files proving third-party ownership claims. In bankruptcy proceedings, on the other hand, both the company files, i.e. the files of the bankrupt company, and the procedural files are subject to the right of inspection.
25 The company files include all business correspondence, any minutes and audit reports, as well as the complete accounts including vouchers and "other relevant documents", which the bankruptcy office is obliged to keep safe (cf. Art. 223 para. 2 SchKG). The procedural files that may be inspected include the bankruptcy record, the collocation plan together with the list of encumbrances, the property realization records, the distribution lists, the inventory, the list of claim submissions together with supporting documents (including those of the other creditors), the minutes of the creditors' meetings and the creditors' committee, the reports of the bankruptcy administration and the court orders on the closure and revocation of the bankruptcy proceedings.
26The person concerned may also request information on who has requested access to the files relating to him or her and when. However, federal law does not contain any provision requiring the debt collection office to keep records of information provided, which is why such a request can only be granted if the information in question is actually available.
B. Form
27In addition to the actual right to inspect files, the entitled party also has the right to obtain excerpts from the minutes and registers. This right, which is infinitely more important in practice, is in principle as broad as the right of inspection. In other words, copies of the files subject to the right of inspection may be requested. Only in exceptional cases may an office refer the applicant to personal inspection, namely if this would save the office unreasonable expense. However, there is no entitlement to the issuance of files.
28 According to the practice of the debt collection offices, both in the case of a self-disclosure and in the case of a request by a third party who does not make a further request, only summary information is provided, namely in the form of the so-called simple debt collection register extract. This contains a list of all debt collection proceedings initiated against the person concerned at the debt collection office concerned over the past five years, stating the name of the creditor bringing the proceedings and any representative, the amount of the claim, the date and the current status of the debt collection proceedings.
29 The simple excerpt from the debt collection register also contains the number of certificates of loss from seizures recorded in the relevant debt collection district and not yet redeemed in the last 20 years. Finally, it also lists the openings of bankruptcy proceedings and the conclusion of bankruptcy proceedings that have been reported to the debt collection office concerned in the course of the past five years.
30 The simple excerpt from the debt collection register does not include the debt collection proceedings that cannot be viewed pursuant to Art. 8a para. 3 lit. a-d and the so-called silent debt collection proceedings. In order to get an idea of the silent debt collection proceedings, which may be of interest in particular for the question of the interruption of the statute of limitations, it is rather necessary to have a look at the debt collection register.
C. Scope
31 If the applicant has credibly shown an interest in inspection worthy of protection, this does not mean that he may inspect all debt enforcement or bankruptcy files without restriction. This is because the scope of the right of inspection is always determined by the interest existing in the individual case. The decision on the right of inspection granted in an individual case is based in each case on a weighing up of the applicant's interest in the most comprehensive information possible and the data protection interest of the person concerned.
32 Frequently, applicants are only interested in a simple extract from the debt collection register. In this case, a restriction of the scope of access is out of the question from the outset. The situation is different in bankruptcy proceedings: Here, the question arises as to which documents creditors may inspect and which they may not. In this context, the Federal Supreme Court has stated that, in principle, bankruptcy creditors are entitled to inspect all documents relating to the bankruptcy in question. Only in exceptional cases is it permissible to deny a bankruptcy creditor access to certain documents, for example (a) if the creditor requests access for reasons that have nothing to do with his status as a creditor, (b) if access would not serve any reasonable purpose but would only cause useless inconvenience, or (c) if the disclosure of a certain document would conflict with the overriding confidentiality interests of the person concerned.
V. Exclusion of the right of inspection
A. Problem
33In Switzerland, a (putative) creditor can initiate debt enforcement proceedings without having to prove the existence of his claim. On the one hand, this special feature of Swiss enforcement law leads to substantial cost savings, since not every claim, no matter how clear, has to be established in court before it can be enforced. On the other hand, however, this liberal order harbors a certain potential for abuse, since unjustified debt collection proceedings can also find their way into the debt collection register, which is open to inspection by interested third parties. In particular, debt collection proceedings against which the person concerned has lodged a legal objection and thereby obtained the (provisional) discontinuation of the debt collection proceedings remain listed in the debt collection register and are accessible to third parties - albeit with the note that a legal objection has been lodged.
34With this in mind, para. 3 of Art. 8a SchKG stipulates that the debt collection and bankruptcy offices may not disclose knowledge of a debt collection to third parties in certain cases. These entries are not deleted, however, but merely marked with a corresponding note so that they are no longer disclosed to third parties. This special feature is due to the function of the logs and registers: this consists primarily of documenting the official activities of the debt collection and bankruptcy offices; they only perform their role as an instrument of credit protection as a secondary function intended by the legislator. Internally, therefore, all debt collection actions and thus all debt collection proceedings must remain documented. Notwithstanding this, the term "cancellation" is often used in a non-technical manner.
B. Invalid debt collection or debt collection annulled on the basis of a complaint or a court decision (Art. 8a para. 3 lit. a)
1. Null and void debt collection
35 A debt collection is void if it has been initiated in abuse of rights or in error. Nullity must be observed ex officio and does not require a corresponding determination by the supervisory authority. Therefore, nullity may be asserted both before the supervisory authority and directly before the debt collection or bankruptcy office. Since the debt collection office is seldom in a position to recognize the nullity of a debt collection on its own, in practice the debtor will challenge the payment order by means of a supervisory complaint (Art. 17 SchKG). After expiry of the appeal period, the debtor may notify the supervisory authority of the nullity by means of a supervisory notification (Art. 22 para. 1 SchKG) and thus obtain a declaration of nullity.
36 Nullity may only be assumed in exceptional cases, namely if it is obvious that the alleged creditor is pursuing objectives with the debt collection that have nothing whatsoever to do with enforcement. Such extraneous goals are pursued if the creditworthiness of the (alleged) debtor is merely to be damaged or if, for the purpose of harassment, a completely exaggerated amount is put in debt collection. As long as the creditor with the debt collection actually aims at the collection of a claim asserted by him, abuse of rights is basically excluded. 2.
2. Debt collection annulled on the basis of a complaint under debt collection law
37 A debt enforcement action contested by means of a complaint under debt enforcement law (Art. 17 SchKG) and annulled by the supervisory authority may also no longer be brought to the attention of third parties. In contrast to nullity, this does not concern debt enforcement proceedings initiated in abuse of rights, but rather those in which the debtor has suffered a disadvantage due to an infringing or unreasonable order. There is no nullity, for example, if a locally incompetent debt collection office issues the order for payment; such an order for payment is merely contestable. 3.
3. Debt collection proceedings cancelled on the basis of a court decision
38 Finally, no inspection is granted for debt collection proceedings that have been annulled by a court decision. The Federal Supreme Court has clarified that the annulment of the debt collection does not necessarily have to be ordered in the dispositive of the relevant court decision. It is sufficient if it is clear from the result of the proceedings that the debt collection was unjustified when it was initiated. Accordingly, a court decision that has as its object the annulment of the debt collection is present in the following cases:
Approval of a petition under Art. 85 SchKG or an action under Art. 85a SchKG: If the debt does not exist or no longer exists, the debt collection must be cancelled. Partial cancellation of the debt collection is also permissible; in this case, the right of inspection is reduced to the remaining amount. In contrast, a discontinuation due to deferral does not justify a restriction of the right of inspection.
Approval of a (general) negative declaratory action pursuant to Art. 88 CPC. However, as a result of the new version of Art. 85a CPC in the context of the 2019 revision of the SchKG, the general action for a declaratory judgment under Art. 88 CPC is likely to be of little practical significance in debt enforcement proceedings.
Approval of an action for revocation or dismissal of an action for recognition.
39No sufficient reason to deny third parties access to a particular debt collection is the settlement of the underlying debt. This legal consequence, which is difficult to comprehend especially for laypersons, has its justification: After all, even a merely temporary non-payment of a debt due is certainly of interest to future creditors with regard to the creditworthiness of a debtor.
40A judicial annulment of a debt collection does not therefore in every case lead to the debt collection no longer being disclosed. If the debtor has repaid the debt on which the debt collection is based only after the debt collection has been raised, he cannot have the debt collection in question cancelled via the detour of Art. 85 SchKG or Art. 85a SchKG. If a debtor pays the debt enforced directly to the debt enforcement office (cf. Art. 12 para. 2 SchKG), the debt enforcement becomes invalid but continues to appear in the debt enforcement statement. The legal remedies according to Art. 85 SchKG and Art. 85a SchKG do not apply due to the lack of interest in legal protection. Consequently, the same must apply in the event that the debtor pays the creditor directly; although the debtor can demand the cancellation of the debt collection on the basis of a direct payment to the creditor, this debt collection should continue to be listed in the debt collection register.
41In practice, therefore, agreements whereby the debtor settles the outstanding claim while the creditor in return withdraws its debt collection (usually after receiving payment) are common.
C. Victory with action for recovery (Art. 8a para. 3 lit. b)
42Collections in which the debtor has successfully brought an action for recovery (Art. 86 SchKG) are also not accessible to third parties.
D. Debt collection withdrawn (Art. 8a para. 3 lit. c)
43 Likewise, no information is to be provided on debt enforcement proceedings which the creditor has withdrawn. The reasons for the withdrawal are just as irrelevant as the time of the withdrawal, i.e. whether it took place before or after the debt was paid. It must be made clear that the creditor is not obliged (by law) to withdraw his debt collection after the debt has been paid.
44 Withdrawal is also possible simultaneously with the initiation of debt collection. In this case, the debt collection office does not issue a payment order, which is why the debt collection is not listed in the debt collection register (so-called silent debt collection). It has not been conclusively clarified whether such silent debt collection has the effect of interrupting the statute of limitations.
E. Approved request for non-disclosure of the debt collection (Art. 8a para. 3 lit. d)
1. Direction of the 2019 revision
45Since debt collection proceedings listed in the debt collection register extract can lead to serious disadvantages for the person concerned, especially in tight market conditions (e.g. in the housing market), there has been repeated criticism in recent years of the legal situation, which is disadvantageous for unjustified debt collectors. Specifically, the hurdles to make unjustified debt collection no longer visible to third parties were criticized as being too high. In fact, prior to the 2019 revision, the (unjustified) debtor had to either prevail in - typically costly - court proceedings (cf. Art. 8a para. 3 lit. a and b SchKG) or hope for a concession from the (alleged) creditor (Art. 8a para. 3 lit. c SchKG) if he wanted to have a debt collection removed from the debt collection register extract.
46 Against this backdrop, the 2019 revision of Art. 8a para. 3 lit. d SchKG provided business owners with a new instrument to have unjustified payment orders deleted from their debt collection register more quickly and cost-effectively. According to the legislative materials, unjustified debt collection orders were not limited to actual vexatious debt collection, but generally included debt collection orders for fully or partially disputed claims in which the alleged creditor did not remove the legal proposal.
47 Specifically, Art. 8a para. 3 lit. d SchKG now stipulates that debt collection offices do not inform third parties of debt collection proceedings against which a legal proposal has been made if the debtor submits a request for non-disclosure and the (alleged) creditor subsequently fails to prove within 20 days that he has initiated proceedings to eliminate the legal proposal. Thus, the SchKG now provides for a procedure in which the (non-)justification of a debt collection is to be concluded from formal criteria, in particular from the behavior of the parties, without a substantive examination of the claim.
48The justification of a debt collection determined in this way in no way represents a final assessment. The substantive examination of the debt enforced and the associated assessment of whether its enforcement was justified is carried out solely by the courts responsible for this.
2. The procedure pursuant to Art. 8a para. 3 lit. d SchKG
a. Scope of application of Art. 8a para. 3 lit. d SchKG
49 In order for the procedure under Art. 8a para. 3 lit. d SchKG to apply at all, the debtor must have raised a legal objection. This restriction is justified by the fact that a debtor who does not raise a legal objection thereby expresses that the debt collection is justified. The same must be the case if the debtor withdraws the legal proposal that has been made.
50 Even if this consideration is often correct, it must be borne in mind that legal laypersons in particular are not always able to correctly assess the scope of the legal proposal for the debt collection proceedings and may, under certain circumstances, imprudently not raise a legal proposal or withdraw it. Certain debtors take advantage of this lack of knowledge and put additional pressure on the (alleged) debtor not to file a legal proposal or to withdraw the legal proposal already filed. Therefore, it is not always possible to conclude that the debt collection is justified from an omitted or withdrawn legal proposal. Nevertheless, Art. 8a para. 3 lit. d SchKG in its current version does not provide a basis for non-notification of the debt collection in the case of a withdrawn or omitted legal proposal.
51A similar problem arises with the excessive (collection) fees frequently encountered in practice. As a result, debtors (rightly) see themselves obliged to make a partial legal proposal to the extent of the fees, even in the case of claims that are basically justified. However, under Art. 8a para. 3 lit. d SchKG, a partial legal proposal has the same effect as a completely omitted legal proposal and is therefore of no help to the party in possession. Here too, Art. 8a para. 3 lit. d SchKG is only a partially satisfactory solution.
52 Nor is Art. 8a para. 3 lit. d SchKG available to the debtor if he has paid the debt or part of it. If payment is made to the debt enforcement office, the latter knows about it anyway. If, on the other hand, the payment is made directly to the creditor, it is the creditor's responsibility to inform the debt collection office accordingly, provided that the creditor has an interest in the disclosure of the debt collection. In this case, the creditor must be expected to substantiate the direct payment with documents - simple assertion is not sufficient.
53If an earlier application for non-disclosure was approved but the claim was subsequently paid, the debt collection must be made available for inspection again - admittedly with the note "paid". The only exception is if the claim has already been paid prior to the initiation of the debt collection, since in this case it is an unjustified debt collection.
b. Request of the debtor
54If the debtor has made a legal proposal for the entire debt and has subsequently not paid the debt either in full or in part, he may submit a request for non-disclosure three months after service of the order for payment. The three-month period is calculated in accordance with Art. 31 SchKG in conjunction with Art. 142 Para. Art. 142 para. 2 CPC.
55 The request must be addressed to the debt enforcement office. The debtor is free to use the sample form provided for this purpose. In any case, the request must state the party making the request, the debt collection concerned and, if applicable, the claim concerned in a debt collection (if a debt collection comprises several claims), as well as the wish that the debt collection concerned cannot be viewed by third parties in the future. The request may also be made orally.
56 According to the case law of the Federal Supreme Court, which will be discussed in detail below, a request for non-disclosure made after the one-year deadline pursuant to Art. 88 para. 2 SchKG must be rejected. In fact, the debtor must submit his request at the latest 20 days before the expiry of the one-year period pursuant to Art. 88 para. 2 SchKG, since according to the Federal Supreme Court the presumed creditor must have sufficient time, i.e. (arguably) the full 20 days, for a "reaction". It is unclear whether the debtor must also take into account the processing and forwarding time of the debt collection office.
57The Federal Supreme Court essentially justifies its practice with reference to the parliamentary deliberations, according to which the "inactivity" of the creditor after service of the order for payment should constitute the essential criterion for granting a request for non-notification of the debt collection. After the expiration of the time limit of Art. 88 para. 2 SchKG (and the lapse of the debt collection), the creditor could no longer react. Therefore, the procedure according to Art. 8a para. 3 lit. d SchKG is not suitable under these circumstances to distinguish between justified and unjustified debt collection. In our opinion, this reasoning is not convincing for several reasons:
The argument that the (alleged) creditor no longer has the possibility to react is therefore not valid because he can effortlessly put the same claim into collection again and thus ensure that it continues to appear or appears again in the collection register extract of the debtor. If the creditor is really interested in enforcing his claim, he will have to initiate a new debt collection after the debt collection lapses. In this case, the debtor is even confronted with two debt collection proceedings for the same claim, without being able to ensure non-disclosure of the lapsed debt collection proceedings with a simple request. In contrast, a legal action to clear up the debt collection register is a lengthy and costly process.
Moreover, at the time the debt collection lapses, the creditor has already had about one year to initiate proceedings to eliminate the legal proposal. If he fails to do so, the conclusion is obvious that the debt collection is unjustified. This consequence also corresponds to the legislator's idea, according to which debt enforcement proceedings that are not continued are deemed to be unfounded.
If then the distinction between justified and unjustified debt collection should be based on the creditor's inactivity, it is not clear why setting a deadline for the creditor to prove the (timely) initiation of proceedings for the elimination of the legal proposal after the expiry of the deadline pursuant to Art. 88 para. 2 SchKG should be less suitable than before. Firstly, in practice, the debt collection office often does not even know whether the period pursuant to Art. 88 para. 2 SchKG has expired without corresponding proof from the creditor. Secondly, this period may also expire although the creditor has not remained inactive. And thirdly, even after the expiry of the time limit, the creditor can still initiate proceedings to remove the legal proposal, in which case the proceedings have not been initiated in time (and are futile in substance). Proof by the creditor is therefore also necessary in order to be able to assess at all whether the time limit under Art. 88 para. 2 SchKG has expired and any proceedings have been initiated in due time. If there is no such proof, the debt collection is no longer to be disclosed on the basis of Art. 8a para. 3 lit. d SchKG. There is no reason to assess the creditor's inactivity before and after the expiry of the time limit pursuant to Art. 88 para. 2 SchKG differently. For in one case as in the other, it is clear that the creditor remained inactive (for too long), whereby the decisive criterion for identifying unjustified debt collection is fulfilled according to the Federal Supreme Court.
The view taken by the Federal Supreme Court, according to which the creditor's inactivity only leads to non-disclosure of the debt collection if the creditor still has the possibility to prove the initiation of (not futile) proceedings within 20 days from the request, can neither be based on the wording of the law nor on the materials and contradicts the legislative intention. From the point of view of the debtor, it should not be obvious that his request for non-disclosure is protected if the creditor has waited 3 or 11 months from service of the order for payment before initiating proceedings, but not if the creditor has remained inactive for 12 months.
58 Correctly, a request for non-disclosure should therefore also be approved after the expiry of the one-year period pursuant to Art. 88 para. 2 SchKG if the creditor has remained inactive until that time. The only time limit is Art. 8a para. 4 SchKG: Since debt collection proceedings are no longer listed in the debt collection register extract after five years anyway, the debtor has no legal interest in a request for non-disclosure from this point on.
c. Notification of the creditor by the debt collection office
59If the debt collection office is aware at the time of receipt of the request for non-disclosure that the creditor has already initiated proceedings for the elimination of the legal proposal, it shall reject the request without further ado. If the Office is not aware of such proceedings, it shall immediately request the creditor to provide the relevant evidence. For this request, the Office shall use the form provided for this purpose "Notification to the creditor concerning a request for non-disclosure of an enforcement action".
d. Proof by the creditor
60Following the request by the debt collection office, the creditor has 20 days to prove that proceedings to eliminate the legal proposal were initiated in good time. If no notification is received from the creditor within this period, the debt collection office will accept the request of the debtor and will no longer bring the debt collection to the attention of third parties (or will no longer list the debt collection in the extract from the debt collection register). The Office informs the debtor that its application has been approved.
61The "proceedings for the elimination of the legal proposal" are deemed to be both the action for recognition under Art. 79 SchKG and proceedings for the opening of legal proceedings under Art. 80 or 82 SchKG. Art. 8a para. 3 lit. d SchKG states that one of these proceedings must be "initiated" by the creditor. Thus, the creditor only has to prove the initiation of such proceedings. According to the case law of the Federal Supreme Court, the creditor satisfies this requirement even if he is unsuccessful in the legal opening proceedings initiated by him (i.e. if, for example, his request for legal opening is rejected or not accepted). According to the Federal Supreme Court, the creditor proves the "seriousness" of the debt collection by initiating proceedings for the elimination of the legal proposal, which is sufficient for further notification of the debt collection. In other words, if the creditor has not initiated any proceedings to eliminate the legal proposal, the debtor's request for non-disclosure must be approved; if, on the other hand, the creditor has initiated such proceedings and has been unsuccessful, the request for non-disclosure must be rejected.
62In our opinion, the practice of the Federal Supreme Court is not convincing in this context either and has been rightly criticized in the doctrine.
The Federal Supreme Court already starts from the wrong premise, according to which Art. 8a para. 3 lit. d SchKG is about determining the "seriousness" of a debt collection. However, how "serious" a creditor is in pursuing his (alleged) claim has never been an issue in the legislative process. Rather, it was always a matter of using simple, formal criteria to distinguish unjustified debt collection from justified debt collection.
It is true that the creditor's action was discussed in the parliamentary deliberations as a starting point for this distinction and was subsequently reflected in the wording of the law. The inactivity of the creditor for three months (and 20 days) was considered by the legislator as sufficient indication that a debt collection is presumably unjustified. Behind this assessment is also the recognition that a payment order with a legal proposal is of no use to the creditor and that he must appeal to the court to collect his claim. However, if a debt collection is already considered to be presumptively unjustified if it has not been examined by the court due to the creditor's inactivity, this must apply all the more to a debt collection that cannot be continued after examination by the court. Whereas the dismissal of an action for debt forfeiture directly proves the non-existence of a claim (and leads to the non-notification of the debt collection), this is not equally the case in the event of a defeat in the proceedings for the opening of a legal action (or in the event of a failure to respond to an action for debt forfeiture). However, a defeat in the legal opening proceedings is nevertheless an indication that the debt collection is unjustified. Accordingly, in the opinion expressed here, it would be more in line with the purpose of the provision and the legislative intentions if a request for non-disclosure of the debt enforcement proceedings were granted even after the creditor had been unsuccessful in the proceedings to initiate the legal proceedings.
In this case, the creditor would still have the possibility to prove within the period of 20 days that he has initiated new proceedings for the elimination of the legal proposal in the relevant debt collection. Only if the creditor succeeds in proving this, is there any prospect at all that the legal proposal in the debt collection in question will still be eliminated. And only under these circumstances is it justified to continue to bring the debt collection to the attention of third parties. Otherwise, the debtor who has successfully defended his legal proposal would be treated worse than the debtor who has not yet had to defend his legal proposal at all.
Contrary to the considerations of the Federal Supreme Court, the wording of Art. 8a para. 3 lit. d SchKG does not stand in the way of a more liberal practice: The initiation of proceedings mentioned in the law is merely the temporal connecting factor that determines the point in time from which a request for non-disclosure must be rejected. If the legislator had instead referred to the point in time - which is actually relevant for the distinction between unjustified and justified debt collection - when the legal proposal is eliminated, the debtor could have requested that the debt collection in question not be disclosed during the procedure for eliminating the legal proposal - which would have diluted the informative value of the extract from the debt collection register. However, for the aforementioned reasons, it cannot be concluded from this that under Art. 8a para. 3 lit. d SchKG the mere initiation of a corresponding procedure is sufficient in any case.
63 Despite the criticism in the doctrine, it cannot be assumed that the Federal Supreme Court will return to its (officially published) case law in the foreseeable future. For the time being, therefore, it is sufficient for the alleged creditor to initiate legal proceedings - irrespective of the outcome of the proceedings. Against the background of this practice, the initiation of conciliation proceedings should also be sufficient, even if the creditor subsequently allows the authorization to sue to lapse by not filing suit within three months.
64If, on the other hand, a request for conciliation is withdrawn if the claimant fails to appear at the conciliation hearing, the period of three months pursuant to Art. 8a para. 3 lit. d SchKG should, according to cantonal practice, start running again when the conciliation proceedings are written off. The creditor is free to file a second request for conciliation, provided that he has withdrawn the first one with a corresponding reservation of reinstatement. In this case, the new request for conciliation again initiates proceedings for the elimination of the legal proposal.
65 Insofar as the creditor wishes to provide evidence of the timely initiation of proceedings with reference to an action for recognition pursuant to Art. 79 SchKG, the following should be noted: An action for recognition exists only if, in addition to the request for payment, an application is also made for the elimination of the legal proposal in a specific debt collection. Accordingly, an action for recognition or a request for conciliation only initiate "proceedings for the elimination of the legal proposal" if the creditor has expressly requested the elimination of the legal proposal. An exception to this principle can only be made if the creditor is unable to request the elimination of the advance in title - for example, because he has to sue for the debt in question before a foreign court or an arbitral tribunal. Likewise, the creditor cannot be required to file a request for the elimination of the advance on the right if he filed the action before the debt collection was lifted or before the advance on the right was filed and an amendment of the action is no longer (or not yet) permissible under civil procedure.
66The proof of the timely initiation of proceedings for the removal of the preliminary injunction may be shown in particular by a notice of posting or receipt of the request for the opening of proceedings or of the action for recognition. If the creditor sends such proof to the Office, the debt enforcement proceedings shall continue to be brought to the attention of third parties or shall be brought to their attention again. If the creditor notifies the Office during the 20-day period, it shall also lead to the rejection of the debtor's application.
3. Parliamentary Initiatives in Response to the Federal Supreme Court Case Law
67As already mentioned, the two rulings of the Federal Supreme Court, according to which requests for non-disclosure are to be rejected if the time limit pursuant to Art. 88 para. 2 SchKG has expired or if the creditor has been unsuccessful in the legal opening proceedings, have (rightly) met with criticism in the doctrine. In view of the restrictive interpretation of Art. 8a para. 3 lit. d SchKG by the Federal Supreme Court, it is hardly surprising that the legislator reacted promptly: In response to the two rulings, the Legal Commission of the National Council decided in January 2022 to submit two parliamentary initiatives aimed at correcting them (Parliamentary Initiatives 22.400 and 22.401). Thus, it is to be clarified in the text of the law that a request for non-disclosure is to be granted even if the deadline pursuant to Art. 88 para. 2 SchKG has expired or if the creditor's request for the elimination of the legal preliminary ruling is not granted or his request is definitively rejected. The Legal Commission of the Council of States has approved both initiatives, and the Legal Commission of the National Council is currently drafting a bill.
VI. Temporal limits
68The right of inspection of third parties expires five years after the conclusion of the proceedings (Art. 8a para. 4 SchKG). In this context, not only a formally terminated debt collection is deemed to be concluded, but also any debt collection that cannot be continued by an ordinary request of the creditor. The wording of the law makes it clear that this time limit only concerns the right of inspection of "third parties". The right of inspection of the former parties to the concluded debt enforcement or bankruptcy proceedings is just as unaffected by this as that of the authorities and that of the person concerned himself. Their right of inspection can only be limited by the fact that the requested files no longer exist.
69A special time limit then applies to open loss certificates: It follows from the possibility of deleting certificates of loss pursuant to Art. 149a SchKG that the right of inspection of third parties remains in force until the time of deletion.
VII. Costs
70The costs for the individual administrative acts are regulated in the Fee Ordinance to the SchKG (GebV SchKG). The following special features must be noted:
Pursuant to Art. 12b GebV, the fee for the request for non-disclosure pursuant to Art. 8a para. 3 lit. d SchKG is a flat rate of CHF 40. These costs are to be borne by the applicant - regardless of the fate of the request or the debt collection in question. The requested office may make the processing of the application dependent on the advance payment of the CHF 40.
For the persons involved in debt enforcement or bankruptcy proceedings, the inspection of files is free of charge.
Information to court and administrative authorities is also subject to a fee, unless federal law provides for an exception (cf. Art. 12a para. 3 GebV SchKG).
VIII. Appeals
71 If an applicant creditor is refused inspection, he may appeal against the decision in accordance with Art. 17 SchKG. Decisions of the last cantonal instances may be appealed to the Federal Supreme Court pursuant to Art. 72 para. 2 lit. a BGG. On the other hand, the creditor has no right of appeal if the debtor has successfully obtained non-disclosure of the debt collection pursuant to Art. 8a para. 3 lit. d SchKG. This is because the creditor is neither a party to the proceedings for non-disclosure of the debt collection nor is he entitled to have his debt collection listed in the debt collection register.
72 The debtor, on the other hand, can challenge a negative decision regarding his application for non-disclosure of a debt collection by filing an appeal under Art. 17 SchKG. In contrast, he has no legal remedy against an unjustly granted inspection. There is no practical procedural purpose here, since the wrongfully granted information cannot be reversed. At most, a state liability according to Art. 5 SchKG comes into question.
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Materials
Amtsbericht des Obergerichts an den Kantonsrat Schaffhausen 2010 (zit. AB SH 2010), abrufbar unter https://sh.ch/CMS/get/file/0799aaef-054f-4797-8c0d-827d0dc31260, besucht am 7.8.2023.
Amtsbericht des Obergerichts an den Kantonsrat Schaffhausen 2021 (zit. AB SH 2021), abrufbar unter https://sh.ch/CMS/get/file/74826088-d524-4eae-b4a7-2606134b7979, besucht am 7.8.2023.
Amtliches Bulletin des Ständerats, Herbstsession 2016, S. 759 ff. (zit. AB SR 2016)
Bericht der Kommission für Rechtsfragen des Nationalrates zur Parlamentarischen Initiative «Löschung ungerechtfertigter Zahlungsbefehle» vom 19. Februar 2015, BBl 2015 S. 3209 ff., abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2015/692/de/pdf-a/fedlex-data-admin-ch-eli-fga-2015-692-de-pdf-a.pdf, besucht am 7.8.2023.
Bericht über das Ergebnis des Vernehmlassungsverfahrens zur Parlamentarische Initiative «Abate – Löschung ungerechtfertigter Zahlungsbefehle» vom Januar 2014, abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/dl/proj/6013/72/cons_1/doc_6/de/pdf-a/fedlex-data-admin-ch-eli-dl-proj-6013-72-cons_1-doc_6-de-pdf-a.pdf, besucht am 7.8.2023.
Botschaft über die Änderung des Bundesgesetzes über Schuldbetreibung und Konkurs (SchKG) vom 8.5.1991, BBl 1991 III 1, S. 1 ff., abrufbar unter https://www.amtsdruckschriften.bar.admin.ch/viewOrigDoc/10051897.pdf?id=10051897&action=open, besucht am 7.8.2023).
Kreisschreiben Nr. A 1 der Aufsichtsbehörde in Schuldbetreibungs- und Konkurssachen des Kantons Bern (zit. KS AB SchKG BE Nr. A 1), abrufbar unter https://www.zsg.justice.be.ch/de/start/dienstleistungen/kreisschreiben-musterformulare.html, besucht am 7.8.2023.
Gerichts- und Verwaltungspraxis des Kantons Zug, Buch 2019 (zit. GVP 2019), abrufbar unter https://www.zg.ch/behoerden/staatskanzlei/kanzlei/gvp/buch-gvp-2019, besucht am 7.8.2023.
Gerichts- und Verwaltungspraxis des Kantons Zug, Buch 2021 (zit. GVP 2021), abrufbar unter https://www.zg.ch/behoerden/staatskanzlei/kanzlei/gvp/buch-gvp-2021, besucht am 7.8.2023.
Medienmitteilung der Kommission für Rechtsfragen des Nationalrates vom 14.1.2022, abrufbar unter https://www.parlament.ch/press-releases/Pages/mm-rk-n-2022-01-14.aspx, besucht am 7.8.2023.
Solothurnische Gerichtspraxis (SOG), abrufbar unter https://so.ch/gerichte/informationen/rechtsprechung/, besucht am 7.8.2023.
Stellungnahme des Bundesrats vom 1.7.2015 zum Bericht der Kommission für Rechtsfragen des Nationalrates vom 19.2.2015, BBl 2015 S. 5785 ff. (zit. Stellungnahme BR 2015), abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2015/1322/de/pdf-a/fedlex-data-admin-ch-eli-fga-2015-1322-de-pdf-a.pdf, besucht am 7.8.2023
Weisung der Dienststelle Oberaufsicht für Schuldbetreibung und Konkurs Nr. 4 (Betreibungsauszug 2016) des Bundesamts für Justiz (zit. Weisung Nr. 4).
Weisung der Dienststelle Oberaufsicht für Schuldbetreibung und Konkurs Nr. 5 (neuer Art. 8a Abs. 3 Bst. d SchKG) vom 18.10.2018, ergänzt am 19.10.2021, des Bundesamts für Justiz (zit. Weisung Nr. 5).