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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. Main features of Swiss foundation law
- II. Elements of the concept of a foundation
- III. Foundation business
- Bibliography
I. Main features of Swiss foundation law
1 Swiss civil law does not contain a legal definition of a foundation. Rather, the legal form of a foundation is based on a general basic concept: a foundation is a special fund without an owner, dedicated to a special purpose and with its own legal personality.
A. Sole establishment under private law
2 The foundation has neither owners nor members, but is an independent asset dedicated to a specific purpose ("special purpose asset"). It is thus the only institution under private law in the distinction between corporations and institutions as set out in Art. 52 CC. Due to its institutional nature, the organs do not form the will of the foundation autonomously, but are merely called upon to implement the purpose laid down in the act of establishment. The persons involved in the foundation – first and foremost the founder, the foundation bodies, creditors, beneficiaries, etc. – are not its members, but mere participants with separate legal relationships with the foundation and rights and obligations arising therefrom. The fact that the foundation has neither owners nor members results in a control deficit typical of the legal form, which is why the foundation is the only legal entity under private law that is subject to a state supervisory authority under Art. 84 CC only because of its legal form (family foundations and ecclesiastical foundations are, however, exempt from state supervision, see below N. 14).
B. Principle of separation and solidification
3 The institutional nature of the foundation is expressed above all in two basic principles of foundation law, the separation principle and the solidification principle.
1. Separation principle
4 The principle of separation states that the dedication of assets to a specific purpose, which is made within the framework of the act of establishment, creates a legal entity separate from the founder with its own assets and organisation.
5 As a rule, too much influence of the founder on the foundation comes into conflict with the principle of separation. The founder may – in addition to the right to change the purpose provided for in Art. 86a CC – also reserve further rights of information, appointment, dismissal, proposal, approval or veto. However, if the rights of influence and control assume an extent no longer worthy of the autonomy of the foundation – which is to be determined in the individual case – this may lead to a breach of the principle of separation and constitute a case of encroachment and, in the case of tax-exempt charitable foundations, may moreover lead to the rejection of the tax exemption.
6 The so-called special rights, which are generally recognised as permissible, are to be distinguished from the founder's rights, with which the usability of certain dedicated assets is restricted, for example by a right of residence to a contributed property in favour of the founder.
2. Solidification principle
7 The organs of the foundation cannot form their own will for the foundation, but are called upon to implement the purpose of the foundation laid down in the deed of formation and thus the founder's will, which has become fundamentally unchangeable – i.e. solidified.
8 Due to the principle of solidification of the foundation, foundations are, by their very nature, fixed and extremely stable entities. The organisation, once laid down in the foundation deed and made independent by the founder's will, should in principle no longer be able to be modified at will after the foundation has been established. However, since even the most prudent founder cannot take into account all future eventualities, Art. 85–86b of the Civil Code provide for the possibility of adapting the foundation in a way that allows for certain breaches of the principle of solidification.
9 A dynamic understanding of the foundation also means that the foundation bodies must be guided by the original will of the founder, but may also develop the foundation further within the framework of the proper exercise of discretion, their own autonomy of action and within the limits of Art. 85 et seq. of the Civil Code, they can and must also develop the foundation further.
C. Interpretation of the founder's will
10 Against the background of the institutional nature of the foundation, the interpretation of the foundation's purpose and the founder's will laid down therein as a guideline for the actions of the foundation's participants is of paramount importance. As a unilateral legal transaction, the foundation transaction is interpreted according to the principle of will and not according to the principle of trust: What is decisive is what the founder intended and not what a potential recipient of the declaration was entitled to understand.
11 Circumstances outside the foundation documents or subsequent circumstances (e.g. oral statements, accompanying documents, letter of wishes, etc.) may be taken into account according to the so-called theory of intimation when determining the true intention if they are at least hinted at in the foundation deed. In the event of a change of circumstances, the hypothetical founder's intention may be determined by means of a supplementary interpretation, whereby the result of this interpretation must also be at least indicated in the foundation deed.
D. Types of foundation
1. The "classical" foundation and the special types
12 Foundation law distinguishes between different types, the so-called "classical" foundations (also called ordinary or normal foundations) and the special types. There are legal special forms with their own regulations (such as the family foundation, the ecclesiastical foundation and the staff welfare foundation) and de facto special forms, such as the corporate foundation, where the particularity results from the foundation assets themselves (an active enterprise or company shares) or the purpose (such as holding or developing the enterprise).
13 The "classical" foundation is not to be equated with a charitable purpose. Civil foundation law does not only permit charitable foundations, but allows all charitable and private-benefit foundation purposes that are not unlawful or contrary to good morals (Art. 52 para. 3 Civil Code). Moreover, non-profit status is basically a legal concept under tax law (cf. Art. 56 subpara. g DBG, Art. 23 para. 1 subpara. f StHG), which is neither specifically defined for foundation civil law nor is it a permissibility requirement for the establishment of a foundation. In this context, "classical" is to be understood as meaning that Articles 80–89 of the Swiss Civil Code are applicable to the foundation, without foundation-specific special provisions being applicable, such as Article 87 of the Swiss Civil Code, which provides for an exemption from state foundation supervision or the obligation to have an auditor for family foundations and ecclesiastical foundations (Article 87 para. 1 and para. 1bis of the Swiss Civil Code).
2. Significance of the distinction
14 Due to the differentiated approach according to the type of foundation, there is no one foundation law applicable to all foundations in Switzerland, but rather it must be examined on a case-by-case basis which provisions are applicable. The differentiation according to foundation type has serious effects on the legal structure and governance of the foundation: For example, state foundation supervision is provided for in the case of traditional foundations, whereas this is completely absent in the case of family foundations, so that the court, rather than the state supervisory authority, is responsible for complaints by the beneficiaries (Art. 87 para. 1 and para. 2 ZGB). Ecclesiastical foundations, on the other hand, are exempt from the supervision of a state supervisory authority because they are subject to internal church supervision.
3. Mixed foundations
15 If a foundation pursues several purposes (which is permissible without further ado), so-called mixed foundations may exist. Mixed foundations are foundations in which purposes of different types of foundations are pursued together, such as the combination of charitable purposes and benefiting family members (so-called charitable family foundations). Which provisions of foundation law apply to mixed foundations must be determined in each individual case. In addition, the classification of a foundation can be difficult due to the fact that Swiss foundation law differentiates according to the type of foundation, especially since the distinction is usually based on the purpose pursued or the beneficiaries. The family foundation (Art. 87 and 335 CC) is defined, for example, by the fact that its beneficiaries are family members. However, what is to be understood by the legal term "family" is subject to unpredictable and changeable socio-political evaluations, which is why the boundary between the pure family foundation, the mixed family foundation and the classic foundation is often unclear.
E. Legal foundations of foundation law
16 Articles 80–89 of the Swiss Civil Code (CC), as the substantive core law, regulate the basic features of all foundations (establishment, organisation, organs and their duties, changes of purpose and organisation as well as dissolution). The provisions of the special legal types of family foundation, ecclesiastical foundation and staff welfare foundation supersede or supplement these general norms as lex specialis.
17 In addition, the provisions on bookkeeping and accounting (Art. 957–963b CO) as well as the provisions of audit law (Art. 727–731a CO) apply by dynamic reference. Art. 78–87 FusG regulate mergers and asset transfers and Art. 94–98 HRegV the provisions on the entry of foundations in the commercial register.
F. Delimitations
1. Foundations under private law and foundations under public law
18 Foundations under Art. 80 et seq. CC are foundations under private law. In addition, there are foundations under public law which are subject to the public law of the Confederation or the cantons (Art. 59 para. 1 CC). Public-law foundations are generally established by public-law bodies (Confederation, cantons, communes) by a decree of establishment in the form of the law, such as the Confederation's public-law foundation Pro Helvetia. The provisions applicable to the foundation under public law are defined by the act of establishment. Of course, a public-law corporation may also establish a private-law foundation in accordance with Art. 80 ff. CC.
2. Independent and dependent foundations
19 The prototype of the foundation is the so-called independent foundation endowed with its own legal personality. A distinction must be made between these independent foundations and the so-called dependent foundations. Although these are also special assets with their own purpose and (if applicable) their own organisation, they lack their own legal personality, as they are not legally independent legal entities, but are assigned to a third party (usually an existing independent foundation) with a special purpose. A dependent foundation is usually based on a gratuitous donation subject to a condition in the form of a gift, bequest or legacy or on a trust agreement. How the assets donated for a specific purpose are to be administered by the receiving third party is primarily determined by the respective substantive law (in particular the condition according to gift or inheritance law); the extent to which foundation law can also be applied by analogy is disputed. Independent foundations are of particular importance in umbrella foundation models. Umbrella foundations are special structures in which an independent foundation acts as an umbrella (umbrella foundation) for several different assets in the form of dependent foundations (subfoundations). With the dedication of assets to an already existing umbrella foundation (so-called sub-foundation), charitable commitment can also take place without having to establish a foundation structure of its own.
3. Temporary foundations and consumer foundations
20 By their nature and especially historically, foundations are legal entities for eternity. However, the founder's freedom also permits the establishment of foundations for a limited period of time, e.g. if a testator wishes her foundation to be dissolved 15 years after her death. These so-called temporary foundations have been steadily gaining in importance in recent years, not least because under the keyword "impact" the short- and medium-term effect of the funds invested is increasingly in the foreground.
21 Connected with the duration of the foundation (and yet clearly delimited) is the question of whether a foundation may only use the income from the foundation capital to achieve its purpose or whether it may also use the assets (so-called consumption foundations). The use of assets has become the focus of attention, especially during the low-interest environment, as foundations often invest their assets conservatively and as a result the returns on the foundation's assets have become increasingly low. In the case of foundations, the capital can be used to achieve the purpose in any case if the foundation statutes provide for this. Even without an explicit provision in the statutes, the foundation council is, according to the view expressed here, permitted, within the framework of the ordinary exercise of discretion, to temporarily also use parts of the foundation assets for the purpose, i.e. to draw from the foundation capital without, however, consuming it completely. If there is to be a complete switch to consumption, an amendment to the articles must be applied for (as a rule, via Art. 85 of the Civil Code).
II. Elements of the concept of a foundation
A. Purpose
22 The purpose of a foundation is at its heart. The purpose gives the foundation its individual character, constitutes its identity-determining basis of existence, acts as the pivot of the foundation's activity and is the maxim of action of the foundation's participants. Accordingly, the foundation purpose must have a minimum degree of definiteness (principle of definiteness); foundation purposes that are too vague (e.g. "the purpose of the foundation is charitable activities") are inadmissible.
23 Civil foundation law not only permits charitable foundations, but also all charitable and private-benefit foundation purposes that are not unlawful or contrary to morality (Art. 52 para. 3 Civil Code). Within the framework of the founder's freedom, the founder may therefore specify any – permitted – purpose for the foundation, including those based on inequality or perceived as unfair. However, the purpose of the foundation must be for the benefit of others and thus directed outwards; a "foundation for the founder" with the founder as the sole beneficiary is not permitted. Economic purposes are also permissible (BGE 127 III 337: "The freedom of legal transactions in general and the freedom of foundations in particular do not permit a restriction to ideal purposes"). The borderline between permissible economic purposes and impermissible purposes in themselves in the case of corporate foundations (so-called corporate self-purpose foundation or "perpetuum mobile foundation") is disputed in detail.
B. Assets
24 No statutory minimum assets are provided for the establishment of a Swiss foundation. The type and extent of the foundation's assets can be freely determined by the founder. In addition to cash, securities, receivables or NFT are also possible, at least as long as they are of value. However, it is necessary that the assets are appropriate with regard to the purpose pursued (so-called purpose-means ratio). The practice of the Federal Supervisory Authority for Foundations (ESA) requires a "seriousness threshold" of CHF 50,000.
25 A successive endowment of assets is permissible, for example by means of so-called accumulation clauses, whereby the foundation's income is added to the capital until the latter has reached a certain amount. However, it is also permissible for the founder to increase the foundation's assets through subsequent endowments or for third parties to increase the foundation's assets through additional endowments.
C. Organisation
26 The organisation of the foundation, i.e. the organs of the foundation and the type of administration are determined by the foundation deed (art. 83 para. 1). The supreme organ of the foundation entrusted with the administration – in Switzerland usually called the foundation council – authorises and obliges the foundation within the framework of Art. 55 ZGB. In addition to the supreme body, classical foundations – but not family foundations and ecclesiastical foundations, cf. Art. 87 para. 1bis CC – must also designate an auditing body as a governing body (Art. 83b CC).
27 The founder is free in the organisation of the foundation. They may designate further bodies – e.g. consultation or control bodies – or provide for special mechanisms for the appointment of bodies (co-optation, designation by a third body or heirs of the founder). A defective organisation may be remedied by the supervisory authority (Art. 83d).
III. Foundation business
28 Foundations acquire their legal personality upon entry in the Commercial Register (Art. 52 para. 1 and Art. 81 para. 2 CC, Art. 94 HRegV; so-called register or normative system). The actual foundation transaction is the so-called act of dedication. This is a unilateral, non-receivable obligation transaction inter vivos or by reason of death, by which the assets are dedicated to a corresponding purpose. The necessary contents of the deed of dedication are: the will to establish an independent foundation; the designation of the assets to be dedicated to the foundation and the description of the special purpose of the foundation. These essentialia negotii must be contained in the deed of formation (or the disposition upon death) and cannot be outsourced to subordinate regulations or delegated to bodies or third parties.
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Hausheer Heinz/Aebi-Müller Regina, Das Personenrecht des Schweizerischen Zivilgesetzbuches, Bern 2020.
Grüninger Harold, Vorbemerkung zu Art. 80 ZGB und Kommentierungen zu Art. 80, 87 und 335 ZGB, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, 6. Aufl., Basel 2018 (zit. BSK-Grüninger).
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