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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. Regulatory content
- II. Public corporations and institutions (para. 1, first variant)
- III. Bodies and institutions under ecclesiastical law (para. 1, second variant)
- IV. Federal private-law entities with an economic purpose (para. 2)
- V. Corporations under cantonal law (para. 3)
- Bibliography
I. Regulatory content
A. General
1 With the last norm of the General Provisions on legal persons, the direct scope of Art. 52–58 CC is again limited. Art. 59 CC is not a substantive provision, but a pure reference provision with a partly programmatic character. Accordingly, for four different groups of legal persons, reference is made to different sets of norms (public federal or cantonal law; private law of the cantons or provisions under the law of obligations) or these are reserved.
2 Categorically, a distinction is made between public-law corporations and institutions (para. 1, first variant), public-law ecclesiastical corporations and institutions (para. 1, second variant), associations of persons with an economic purpose (para. 2) as well as municipal cooperatives and similar corporations (para. 3).
B. Declaratory vs. constitutive rules of reference
3 If the applicable law already results from the general principles as well as from other provisions, as is the case in paras 1 and 2, it is a purely declaratory or a non-genuine reference. Thus, the referral result of para. 1 already results from the general reservation of Art. 6 para. 1 CC, according to which the public law powers of the cantons may not be restricted by federal private law. The applicability of the provisions of company and cooperative law to associations of persons with an economic purpose also already flows from the general principles concerning legal persons, which is why this reference is also to be regarded as declaratory.
4 Because, without the reference in para. 3, federal private law would be applicable to allied cooperatives and similar corporations on the basis of Art. 5 para. 1 CC, it is a constitutive (genuine) reference, which "originally invokes the complex of norms referred to".
II. Public corporations and institutions (para. 1, first variant)
A. Concepts and delimitation
5 Public law corporations are defined as "administrative bodies constituted by membership, based on public law and endowed with sovereign power" for the independent fulfilment of state tasks. In addition to territorial authorities (Confederation, cantons, municipalities), they also include personal corporations (student associations organised under public law) and real corporations (especially so-called "Meliorationsgenossenschaften", alpine corporations and the like). Mixed forms between these categories are also conceivable.
6 Public-law institutions are those administrative units to which a specific group of persons and objects is grouped by legal statute and made permanently available to its users for a specific administrative task. A distinction is made between independent and dependent public-law institutions: the former have legal personality, the latter do not. A special form of public-law institutions are public-law foundations, i.e. assets made independent by an act of foundation, which as administrative units are subject to public law and fulfil a public task. Foundations under public law may also be independent or dependent, i.e. they may or may not have their own legal personality.
7 Whether or not a legal entity under public law exists in an individual case is rarely disputed in practice; an allocation regularly results without further ado from the basis of establishment. On the other hand, the entry in the commercial register is not a valid indication for the demarcation.
B. Applicable law
8 In principle, public corporations and institutions are subject to the public law of the Confederation and the cantons. This is to be clarified insofar as this reference only concerns the internals of these legal entities, such as establishment, purpose and organisational constitution (including its amendment) as well as dissolution.
9 With regard to external relations, however, a distinction must be made: Public law is applicable if the legal person, with the sovereign power conferred on it by the community, at the same time performs public duties and is thus considered a sovereign entity. If, on the other hand, the public-law corporation or institution is equal to its counterpart in the external relationship and does not act in a sovereign manner (e.g. when purchasing office equipment), a private-law relationship is to be assumed.
10 Furthermore, not only public law but also federal private law (incl. commercial register and merger law) contains special norms for legal persons under public law.
11 Finally, it should be noted that public law can conversely also apply to legal persons under private law under the Civil Code or the Code of Obligations. This is particularly the case when the fulfilment of public duties (possibly in connection with the exercise of sovereign power) is involved, such as in the case of private-law health insurance companies as providers of compulsory health insurance or shooting clubs as providers of compulsory off-duty shooting.
III. Bodies and institutions under ecclesiastical law (para. 1, second variant)
A. Term
12 The concept of an ecclesiastical legal person under public law is ambiguous and is interpreted differently in doctrine. It is certain that public law applies instead of civil law to those legal persons which are recognised by the church and canton as public law or which have been created by a canton for ecclesiastical purposes.
13 The question of the applicable set of norms should not be confused with the constitutional protection of freedom of faith and conscience under Article 15 FC, which is granted to any legal person that pursues a religious purpose according to its articles of association.
B. Applicable law
14 In principle, the same procedure applies to public-law ecclesiastical legal persons as to other legal persons under public law (cf. II.B. above), i.e. federal or cantonal public law is applicable first in internal relations and then in external relations in the case of sovereign activities. On the one hand, federal private law applies when a non-sovereign (e.g. commercial) activity is pursued. On the other hand, federal private law provisions can be introduced as cantonal public law by means of a reference or as a gap-filling measure. Finally, internal church law (e.g. canon law) can be applied by means of such a reference in cantonal public law.
IV. Federal private-law entities with an economic purpose (para. 2)
A. Term
1. "Associations of persons"
15 Para. 2 subjects "associations of persons" that pursue an economic purpose "to the provisions on companies and cooperatives". According to a literal interpretation, this would include not only legal persons but also so-called legal communities. However, according to the prevailing and, in my opinion, correct interpretation, only the former are meant. This is supported above all by the systematic element: the entire Art. 59 CC is embedded in the "General Provisions" on legal persons, which do not deal with legal communities. Another indication in the same direction is provided by Art. 52 para. 1 CC, which speaks of "associations of persons organised as corporate bodies". Insofar as Art. 52 para. 3 CC and Art. 59 para. 2 CC refer to the same term, but without the addendum of "corporate organisation", this is probably also meant.
16 The corporately organised associations of persons with an economic purpose are regulated in the CO. Because there are no establishments according to the CO, one regularly speaks simply of the "corporations of the CO". In concrete terms, this means the joint-stock company (Art. 620 ff. CO), the limited partnership (Art. 764 ff. CO), the limited liability company (Art. 772 ff. CO) and the cooperative (Art. 828 ff. CO).
2. Economic purpose
17 Paragraph 2 is particularly important with regard to the association under Art. 60 ff. CC: The pursuit of an economic purpose is at the same time a delimitation criterion for the admissibility of the form of association (Art. 60 para. 1 CC). If an economic purpose is present in an association of persons organised as a corporation, a legal form of one of the "corporations of the CO" must be chosen.
18 An "economic purpose" exists if economic advantages or other benefits of monetary value are sought for the members of the corporation. On the one hand, this means at the same time that economic benefits for third parties are not prohibited even in the case of a non-economic, i.e. ideal purpose. On the other hand, this reference also does not mean that the corporations of the CO may not pursue non-economic purposes or that in such a case they would have to be subject to the provisions of the CC. It should be noted that the original civil law term "ideal purposes" should not be confused with the tax law term "charitable purposes", which follows its own criteria and is decisive for tax exemption.
B. Applicable law
19 The reference to the CO in para. 2 is to be understood broadly insofar as it includes the corporations of the CO even if they permissibly pursue an ideal purpose. Insofar as the legislator has created a legal person primarily for the pursuit of economic purposes, the CO is thus always the primarily applicable group of norms. The third section of the CO on commercial companies and cooperatives (Art. 620 ff. CO) applies.
20 Opinions differ as to the direct applicability of Art. 52–58 CC to the corporations of the CO. While some doctrine and jurisprudence assume direct applicability and at the same time maintain the primacy of the leges speciales contained in Art. 620 et seq. CO take precedence over the General Provisions, another part of the doctrine would like to differentiate between the various norms and examine whether they were (also) tailored to the legal forms of the CO. Regardless of which approach is preferred in this respect, the results are likely to be the same on a regular basis. Thus, it can be assumed, in accordance with the prevailing opinion, that in any case Art. 52 paras. 1 and 2, Art. 53 to 55 CC are, in terms of their content, tailored to legal persons in general and not only to those of the CC.
V. Corporations under cantonal law (para. 3)
A. Term
21 "Allmendgenossenschaften and similar corporations" under cantonal private law are regularly old, cooperative (or comparable, e.g. association-like) forms of organisation for direct land management, for example in agriculture or forestry. Modern farmers' cooperatives that only indirectly serve land management (e.g. purchasing, credit and machinery cooperatives) are not covered by Art. 59 para. 3 CC, but by the general cooperative law in Art. 828 ff. CO.
B. Applicable law
22 With the constitutive reference to the cantonal private law – mostly contained in the cantonal introductory laws – the legislator wanted to take into account the historical cooperative structured cooperations for the joint use of common land, agricultural land, pastures, forests and the like and leave them in their traditional forms. Cantonal private law applies to the formation and organisation as well as to questions concerning membership. Federal private law may be applied as supplementary cantonal law and in those areas in which the cooperatives enter into equivalent relationships with third parties (e.g. protection of personality, liability). The application of public law also remains possible.
Bibliography
Gutzwiller Max, Verbandspersonen, Grundsätzliches, in: Gutzwiller Max (Hrsg.), Schweizerisches Privatrecht, II Band, Einleitung und Personenrecht, Basel et al. 1967.
Häfelin Ulrich/Müller Georg/Uhlmann Felix, Allgemeines Verwaltungsrecht, 8. Aufl., Zürich et al. 2020.
Jakob Dominique, Kommentierung zu Art. 59 ZGB, in: Büchler Andrea/Jakob Dominique (Hrsg.), Kurzkommentar, Schweizerisches Zivilgesetzbuch, 2. Aufl., Basel 2018 (KUKO-Jakob).
Meier-Hayoz Arthur/Forstmoser Peter/Sethe Rolf, Schweizerisches Gesellschaftsrecht, 12. Aufl., Bern 2018.
Niggli Christina, Kommentierung zu Art. 59 ZGB, in: Breitschmid Peter/Jungo Alexandra (Hrsg.), Handkommentar zum Schweizer Privatrecht, Personen- und Familienrecht – Partnerschaftsgesetz, 3. Aufl., Zürich 2016 (CHK-Niggli).
Reitze Christophe, Kommentierung zu Art. 59 ZGB, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, 7. Aufl., Basel 2022 (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).
Weber Rolf H., Einleitung und Personenrecht, in: Tercier Pierre (Hrsg.), Schweizerisches Privatrecht, II Band, 4. Teilband, Basel 1998.
Xoudis Julia, Kommentierung zu Art. 59, in: Pichonnaz Pascal/Foëx Bénédict (Hrsg.), Commentaire Romand, Code civil I, Basel 2010 (CR-Xoudis).