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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
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- 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
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
I. Normative purpose and systematic position
1 After Art. 52 CC regulates the acquisition of legal capacity by legal persons, Art. 53 CC deals with the scope and content thereof.
2 The starting point is the principle of the general legal capacity of legal persons, which, as independent bearers of rights and obligations, are compared to natural persons in legal transactions as fundamentally equal legal subjects. This principle of equality between legal and natural persons is, however, considerably restricted: those rights and duties which are linked to being a human being can only be assigned to natural persons. In other words: If certain abilities and characteristics are intrinsically linked to the "nature" of the human being (the law mentions, for example, "gender, age or relationship"), legal persons cannot acquire them.
3 This supposedly simple formula – legal persons are entitled to all those rights and duties which do not have to be excluded for reasons of factual logic – can in practice harbour difficult questions of delimitation and has led to a rich and differentiated case law (cf. in detail II.). If one were to look only at this formula, one would overlook the fact that there are also rights and duties from which legal persons would be excluded not because they are "non-human", but because the legislature has deliberately excluded this.
4 Finally, it should be noted that the rights and duties of legal persons do not only form a subset of the rights and duties of natural persons. Rather, the legal capacity is extended by areas of legal capacity genuinely related to legal persons. Examples of such rights and obligations, which "naturally" only legal persons (and in part also legal communities) can or should have, are, for example, the facts of mergers, demergers or conversions pursuant to the Merger Act or employee benefits pursuant to Art. 331 para. 1 CO.
II. Individual Aspects of Legal Capacity
A. Private law
1. Property law and general law of obligations
5 Legal persons are regularly holders of property rights, rights of claim, rights in rem and intellectual property rights (with the exception of copyright). They participate in economic competition and can sue or file criminal charges if their rights are violated under the CC and the UCA. Because the actions of the organs of legal persons are imputed to them not only in the aforementioned area of legal transactions, but also for their "other conduct" (Art. 55 para. 2 CC), they are liable in tort within the meaning of Art. 41 et seq. OR and may be liable extra-contractually (e.g. from culpa in contrahendo, unjust enrichment according to Art. 62 ff. OR or from management without a mandate pursuant to Art. 419 ff. CO). A differentiation must be made in the (fundamentally possible) assertion of claims for satisfaction under Art. 49 CO.
2. Personal law and personal rights
6 A distinction must be made in the area of personal rights. Here there are some legal relationships which, although relevant to legal persons, are subject to their own norms (such as legal capacity and the question of domicile). Other aspects, such as age (or the age of majority), are hardly ever relevant for legal persons. Other aspects of the right of personality (such as kinship, citizenship, birth and death, as well as civil status) have no direct counterpart in legal persons, but are covered by separate sets of norms with comparable content (for example, parent companies and subsidiaries, domestic or foreign control, the formation and dissolution/liquidation of companies, as well as entry in the commercial register).
7 With regard to the protection of personality, on the other hand, the fundamental applicability of Art. 27 et seq. CC to legal persons. However, this must be qualified in various ways: The "binding capacity" of legal persons is considerably stronger than that of natural persons. Art. 28 CC partly concerns aspects of personality that only humans can have (right to existence, physical and mental integrity, privacy, freedom and religious development; furthermore, protection against "stalking" in the sense of Art. 28b CC, the rights under the GlG as well as the personality rights under Art. 328 OR), but legal persons are also partly covered by the scope of protection of Art. 28 CC (e.g. when it comes to questions of honour, reputation or privacy – but not privacy). They can also make use of the right of reply under Art. 28g ff. Civil Code. A differentiation must also be made with regard to the protection of names and, accordingly, only Art. 29 CC is applicable, although this is primarily of importance in the case of legal persons under the CC (the company law provisions of Art. 944 et seq. CO are also applicable to legal persons under the CO) and, even there, elements of company law must be resorted to in order to concretise individual issues.
3. Family law
8 Against the background of the "natural" criteria of Art. 53 CC and the human essence of family law, it is hardly surprising that only very few provisions apply to legal persons in this area. Family foundations are of some practical relevance (Art. 87 and 335 CC). Otherwise, legal persons are excluded from almost all rights and obligations under family law. In the area of child and adult protection, however, this exclusion only occurs by virtue of positive legislative orders.
4. Inheritance law
9 By their nature, legal persons are not capable of inheritance (active right of inheritance). On the other hand, they are capable of inheritance (passive right of inheritance), i.e. they can inherit in principle (special cases: Art. 493, 539 para. 2 CC). The latter is limited to cases of voluntary succession (Art. 467 ff. CC) and in principle does not extend to intestate succession (Art. 457 ff. CC, exception Art. 466 CC). Finally, the legal person may be appointed to various offices under inheritance law (i.e. as executor, administrator of the estate, liquidator and representative of the heirs; cf. Art. 517, 554 para. 2, 595, 602 para. 3 CC, but not as witness, Art. 502 ff. CC) may be appointed.
B. Capacity to be a party, to sue and to be sued
10 Legal persons have both active and passive capacity to be parties and to institute proceedings. This must also apply to disputes in which their legal capacity is the subject matter of the dispute. Legal persons have the capacity to sue and be sued.
C. Public law (including criminal law)
11 In public law, what has been said for private law applies mutatis mutandis: there are rights and duties that legal persons cannot have due to their nature, such as human dignity (Art. 7 FC), certain aspects of equality of rights (Art. 8 FC; para. 1 is also applicable mutatis mutandis to legal persons), the right to life and personal freedom (Art. 10 FC), the protection of children and young people (Art. 11 FC), the right to marriage and family (Art. 14 FC) and freedom of faith and conscience (Art. 15 para. 1 FC). Furthermore, there are those to which they could be entitled but are not supposed to be due to a legislative decision, e.g. party representatives within the meaning of Art. 40 para. 1 FSCA must be natural persons. In a mirror image, legal persons are initially entitled to those rights and duties that neither presuppose natural human characteristics nor have been excluded by the legislature, such as the freedom of worship (Art. 15 para. 2 FC), the freedom of expression (Art. 16 FC), the freedom of assembly (Art. 22 FC) and (according to doctrine) the freedom of association (Art. 22 FC) and (according to doctrine) also freedom of association (Art. 23 FC), the guarantee of property (Art. 26 FC) and economic freedom (Art. 27 FC), the guarantee of the judge of domicile (Art. 30 para. 2 FC), the prohibition of double taxation (Art. 127 para. 3 FC) as well as Art. 13 para. 2 FC (protection against misuse of personal data) and the DPA. Finally, there are certain rights and obligations that only legal entities, but not natural persons, can or should have, such as the facts of the Merger Act, for example in the area of health insurance law.
12 The criminal-law capacity of legal persons to commit offences is generally denied, except in the case of ancillary criminal legislation. First of all, it is the organs that are personally responsible. And this is the case even if certain constituent elements of the offence do not apply to them personally but to the legal person in general (Art. 29 SCC). An important exception to this principle lies in Art. 102 SCC, according to which subsidiary or even original liability of the legal person itself may come into question if the act cannot be attributed to the specific person acting.
Bibliography
Büchler Andrea, Kommentierung zu Art. 331 ZGB, in: Büchler Andrea/Jakob Dominique (Hrsg.), Kurzkommentar, Schweizerisches Zivilgesetzbuch, 2. Aufl., Basel 2018 (zit. KUKO-Büchler).
Jakob Dominique, Kommentierung zu Art. 53 ZGB, in: Büchler Andrea/Jakob Dominique (Hrsg.), Kurzkommentar, Schweizerisches Zivilgesetzbuch, 2. Aufl., Basel 2018 (zit. KUKO-Jakob).
Reitze Christophe, Kommentierung zu Art. 53 ZGB, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, 7. Aufl., Basel 2022 (zit. BSK-Reitze).
Riemer Hans Michael, Stämpflis Handkommentar, Vereins- und Stiftungsrecht (Art. 60–89bis ZGB) mit den Allgemeinen Bestimmungen zu den juristischen Personen (Art. 52–59 ZGB), Bern 2012 (zit. SHK-Riemer).
Riemer Hans Michael, Berner Kommentar, Schweizerisches Zivilgesetzbuch, Einleitung und Personenrecht, Die juristischen Personen, Allgemeine Bestimmungen, Systematischer Teil und Kommentar zu Art. 52–59 ZGB, 3. Aufl., Bern 1993 (zit. BK-Riemer).
Scherrer Urs, Kommentierung zur Art. 53 ZGB, in: Jolanta Kren Kostkiewicz/Stephan Wolf/Marc Amstutz/Roland Fankhauser (Hrsg.), Orell Füssli Kommentar, Schweizerisches Zivilgesetzbuch, 4. Aufl., Zürich 2021 (OFK-Scherrer).
Schiess Rütimann Patricia, Kommentierung zu Art. 23 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesfassung, Basel 2015 (BSK-Schiess Rütimann).
Weber Rolf H., Einleitung und Personenrecht, in: Tercier Pierre (Hrsg.), Schweizerisches Privatrecht, II Band, 4. Teilband, Basel 1998.
Xoudis Julia, Kommentierung zu Art. 53 ZGB, in: Pichonnaz Pascal/Foëx Bénédict (Hrsg.), Commentaire Romand, Code civil I, Basel 2010 (CR-Xoudis).