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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 6 Abs. 6 and 7 FADP
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- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
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- Art. 25 CCC (Convention on Cybercrime)
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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. Scope of application
- II. Obligations of the debtor
- III. Obligations of third parties, in particular banks (Art. 91 para. 4 DEBA)
- IV. Duty of authorities to provide information (Art. 91 para. 5 DEBA)
- Bibliography
I. Scope of application
1 Art. 91 DEBA specifies the obligations of debtors and third parties in the context of attachment. The debt enforcement office shall draw the attention of the parties concerned to these obligations, warning them of the penalties that may be imposed (Art. 91 para. 6 DEBA). A corresponding note can be found in sample form no. 5 for the attachment notice. The threat of criminal penalties is an objective condition for criminal liability, i.e., without the threat, there is no penalty.
2 Art. 91 DEBA also applies outside of attachment to provisional attachment, supplementary attachment (Art. 110 para. 1 DEBA) and subsequent attachment (Art. 115 para. 3 and Art. 145 DEBA). Furthermore, Art. 91 DEBA also applies by analogy to seizure (Art. 275 DEBA), retention (Art. 283 DEBA) and the inventory of assets under bankruptcy law (Art. 163 para. 2 DEBA).
II. Obligations of the debtor
A. Obligation to be present (Art. 91 para. 1 no. 1 DEBA)
3 The debtor must be present during the execution of the attachment or be represented (Art. 91 para. 1 no. 1 DEBA). Violation of this obligation is punishable by a fine (Art. 323 no. 1 SCC).
4 Persons who are authorized to receive a debt enforcement document pursuant to Art. 64 ff. DEBA may represent the debtor without power of attorney. The debtor is free to grant power of attorney to additional representatives (Art. 27 para. 1 DEBA).
5 If the representative is unable to provide the debt enforcement office with relevant information (e.g., because the representative is not aware of details regarding the debtor's assets), the debt enforcement office is not required to deal with the representative and may contact the debtor directly.
6 If the debtor is temporarily absent, the debt enforcement office must clarify whether the debtor can be represented. Seizure in absentia is also possible (for seizure in absentia, see N. 9 below).
7 The debtor's obligation to be present also means that they must appear at the office or at the location designated by the debt enforcement office. Failure to appear at the debt enforcement office is also punishable by law.
8 Debtors who are absent from the seizure without excuse and do not arrange for representation may be brought before the court by the police (Art. 91 para. 2 DEBA). The debt enforcement office decides at its discretion whether this is necessary. In doing so, the debt enforcement office must observe the principle of proportionality.
9 A debtor who has been duly notified of the attachment cannot prevent the attachment by being absent. However, in the absence of the debtor, the attachment only takes effect upon delivery of the attachment document (OK-Marasco-Keller, Art. 89 DEBA N. 23).
B. Duty to provide information (Art. 91 para. 1 no. 2 DEBA)
1. Principle: Comprehensive duty to provide information
10 The debtor must provide information about his assets in the event of attachment, insofar as this is necessary for a sufficient attachment (Art. 91 para. 1 no. 2 DEBA). Violation of this obligation is punishable under Art. 163 no. 1 SCC and Art. 323 no. 2 SCC.
11 The purpose of the duty to provide information is to ensure that the debt enforcement office receives the information it needs to carry out the seizure. Without the relevant information from the debtor, the debt enforcement office cannot know whether and where assets are available. Only after the duty to provide information has been fulfilled can the debt enforcement office carry out its tasks in the attachment and, in particular, determine the attachable assets (Art. 92-94 DEBA), estimate the value of the assets (Art. 97 DEBA), and determine the order of attachment (Art. 95-95a DEBA).
12 The duty to provide information is, in principle, comprehensive. It is not up to the debtor to decide whether and which assets can be seized and in what order. This decision is solely at the discretion of the debt enforcement office. The debt enforcement office must proceed in accordance with Art. 95 DEBA. The debtor cannot effectively preempt the office's decision by providing insufficient information. The intrusion into personal privacy associated with the duty to provide information must be accepted.
13 Until the attachment was enforced, the debtor had the opportunity to settle the claim and to realize the assets at his discretion. In addition, he can still stop the debt enforcement by making payment (Art. 12 DEBA). Accordingly, there is no justification for limiting the obligation to provide information to individual assets only. The Federal Supreme Court therefore rightly assumes that the obligation to provide information applies comprehensively.
2. Subject matter of the obligation to provide information
14 In terms of content, the debtor has a comprehensive obligation to provide information about his movable and immovable assets. In addition to information on the extent of the assets, this also includes their location. The duty to provide information also covers assets held by third parties (e.g., bank accounts and securities deposits) and abroad.
15 The comprehensive duty to provide information means that questions about the debtor's personal circumstances (e.g., marital status, place of residence) are also permitted, provided that they relate to the debtor's financial circumstances or allow conclusions to be drawn about them. The specific permissible content of such questions is determined on a case-by-case basis.
16 In terms of time, the obligation to provide information relates to the financial circumstances at the time of the attachment. It also covers transactions that took place during the period of suspicion for Paulian claims under Art. 286 to 288 DEBA (i.e. up to 5 years back). The debt enforcement office does not need to demonstrate any particular urgency for information during the period of suspicion, nor does it need to prove any suspicion of potentially contestable transactions.
3. Limits of the duty to provide information
17 There is a time limit in that the debt enforcement office cannot request information about transactions that took place more than five years ago.
18 There is generally no obligation to provide information on circumstances after the date of the attachment. Exceptions exist in the context of wage garnishment, where the debtor may be obliged to report changes of employment and income, as well as in the case of a supplementary attachment (Art. 110 para. 1 DEBA), an adjustment to current circumstances (Art. 93 para. 3 DEBA) or a subsequent attachment (Art. 115 para. 3 DEBA), which give rise to a renewed obligation to provide information.
19 Some legal scholars argue that the obligation to provide information can be limited in terms of content if the debtor discloses sufficient movable assets to the debt enforcement office to cover the claim. This view cannot be accepted, as the decision on which assets to garnish rests with the debt enforcement office and not with the debtor (see above, N. 12).
20 For purely practical reasons, however, exceptions may be justified in individual cases if, for example, there are sufficient immediately liquid assets and these are disclosed by the debtor, so that no information on other assets (e.g., immovable property) is necessary. However, the decision as to what information is obtained is also the responsibility of the debt enforcement office and not the debtor.
4. Consequences of violating the duty to provide information
21 A violation of the duty to provide information leads to criminal liability under Art. 323 no. 2 of the SCC (disobedience of the debtor) or Art. 163 no. 1 of the SCC (seizure fraud). In addition, the creditor may apply for the opening of bankruptcy proceedings in accordance with Art. 190 para. 1 no. 1 DEBA.
C. Obligation to open premises and containers (Art. 91 para. 3 DEBA)
22 The debtor is obliged to open premises and containers at the request of the debt enforcement office (Art. 91 para. 3 sentence 1 DEBA; so-called “duty of disclosure”). If the debtor refuses to comply with this duty of disclosure, the debt enforcement office may immediately (i.e., without further court order) call on the police.
23 If a debtor does not grant the debt enforcement office access to their home despite being present during the seizure, it is lawful for the police to call a locksmith and forcibly open the door. The same applies if the debtor is absent without excuse.
III. Obligations of third parties, in particular banks (Art. 91 para. 4 DEBA)
24 Third parties who hold the debtor's assets or with whom the debtor has credit balances are required to provide the debt enforcement office with the same information as the debtor (Art. 91 para. 4 DEBA).
25 The term “third party” is to be interpreted broadly. It also includes persons bound by professional secrecy, in particular banks and lawyers. Banking or attorney-client privilege does not entitle them to refuse to provide information about the debtor's assets.
26 For the obligation to provide information to arise, the third party must hold the debtor's assets or the debtor must have a credit balance with a third party (Art. 91 para. 4 DEBA). The debt enforcement office may only oblige a third party to provide information if it suspects that the third party has the debtor's assets at its disposal. The debt enforcement office may not write to third parties without objective reason in order to chance upon the debtor's assets. This follows from the principle of proportionality, which must be observed when involving third parties in the enforcement of attachment. A debt enforcement office is not permitted to send out overly broad, standardized letters to a large number of third parties.
27 The source of the debt enforcement office's suspicion of the debtor's assets is irrelevant. For banks, sufficient suspicion arises, for example, from known account relationships and statements or a corresponding statement by the debtor. However, it is also sufficient for a debtor to have their place of residence or work in a location where a bank is physically present through branches or a subsidiary. This applies even if the debtor's place of residence or work is in a city where many banks are physically represented. At least if the debt enforcement office proceeds in stages in these areas (i.e., does not write to all banks at once), it does not violate the principle of proportionality.
28 A bank that is obliged to provide information on the basis of the debtor's place of residence or work in its catchment area does not have to check whether the debt enforcement office has already written to other banks. Even if such an indication is not apparent from the request for information, the bank may, according to the opinion expressed here, trust that the debt enforcement office is proceeding lawfully (i.e., proportionately).
29 If there is a suspicion of assets in this sense, third parties are obliged to provide information to the same extent as the debtor (Art. 91 para. 3 DEBA). Third parties must also provide comprehensive information, taking into account the aforementioned time and content restrictions. Therefore, only information that allows conclusions to be drawn about the debtor's financial circumstances is required and permitted, and only in relation to transactions that are no more than five years old (see above, N. 14 ff.). Information about assets that are formally held by a third party but economically belong to the debtor is therefore also permissible. A personality profile of the debtor created in the context of a credit check may not be disclosed if no conclusions about assets can be drawn from it.
30 Lawyers may also be requested, in the context of the enforcement of a garnishment, to provide information on whether they are in possession of assets belonging to the garnishment debtor and/or whether they are his debtors. If this is the case, the lawyers must specify exactly what type of assets are involved. In particular, they must also disclose whether they have advance payments and how much these amount to. According to case law, further information, in particular regarding invoicing and persons close to the debtor who settle fee claims on their behalf, is not required.
31 A breach of the duty to provide information is also punishable by law for third parties (Art. 324 SCC). For persons bound by professional secrecy, this threat of punishment is problematic insofar as providing too much information constitutes a breach of professional secrecy and is also punishable by law. In practice, this poses a problem in particular for banks that are confronted with requests for information: if they provide more information than is permitted under Art. 91 para. 4 DEBA, their officers or employees may be liable to prosecution for breach of banking secrecy. If, on the other hand, they do not provide all the information required under Art. 91 para. 4 DEBA, they may be liable to prosecution for disobedience in attachment proceedings.
IV. Duty of authorities to provide information (Art. 91 para. 5 DEBA)
32 Authorities are subject to the same duty to provide information as the debtor (Art. 91 para. 5 DEBA) . The term “authorities” covers all authorities. It does not matter whether they are federal, cantonal, or municipal authorities, or in which area the authority operates. However, the debt enforcement office is not permitted to threaten sanctions against the authority concerned. If an authority refuses to provide information, the debt enforcement office must refer the matter to the disciplinary authorities.
Bibliography
Jeandin Nicolas, Commentaire de l'art. 89 LP, in: Foëx Bénédict/Jeandin Nicolas/Braconi Andrea/Chappuis Benoît (eds.), Commentaire Romand, Poursuite et faillite (LP), 2 édition, Basel 2025 (zit. CR LP- Jeandin).
Kren Kostkiewicz Jolanta, Schuldbetreibungs- und Konkursrecht, 4. Aufl., Zürich 2024.
Müller-Chen Markus, Die Auskunftspflicht Dritter beim Pfändungs- und Arrestvollzug, in: BlSchK 2000, S. 201 ff.
Hagenstein Nadine, Kommentierung zu Art. 323 StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, Strafrecht (StGB/JStGB), 4. Aufl., Basel 2018 (zit. BSK StGB-Hagenstein).
Meier-Dieterle Felix C./Keller Selim, Der Arrestvollzug bei Banken, in: ZZZ 62 (2023), S. 147 ff.
Jäger Tina, Urteilsbesprechung BGer 5A_470/2020, in: AJP 2021, S. 687 ff.
Sievi Nino, Kommentierung zu Art. 91 SchKG, in: Staehelin Daniel/Bauer Thomas/Lorandi Franco (Hrsg.), Basler Kommentar, Bundesgesetz über Schuldbetreibung und Konkurs, 3., Aufl. 2021 (zit. BSK SchKG-Sievi).
Winkler Thomas, Kommentierung zu Art. 91 SchKG, in: Hunkeler Daniel (Hrsg.), Kurzkommentar, Schuldbetreibungs- und Konkursrecht, 3. Aufl., Basel 2025 (zit. KUKO-Winkler).
Winkler Thomas, Kommentierung zu Art. 91 SchKG, in: Kren Kostkiewicz Jolanta/Vock Dominik (Hrsg.), Schulthess Kommentar, Kommentar zum Bundesgesetz über Schuldbetreibung und Konkurs, 4. Aufl., Zürich 2017 (zit. SK-Winkler).