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- Art. 3 FC
- 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
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- Art. 16 PRA
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- Art. 19 PRA
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- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
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- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
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- Art. 67 PRA
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- Art. 73 PRA
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- 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
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- 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
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- 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. Submitting the application
A. Characteristics
1 Under art. 220 of the Swiss Code of Civil Procedure, the filing of the claim is the decisive moment for initiating proceedings before the court of first instance. In ordinary proceedings, the claim is characterized by a written pleading containing at least the plaintiff's submissions and the reasons for them (art. 221 para. 1 CPC). The filing of an application in simplified procedure (art. 244 CPC) determines the commencement of the proceedings, by virtue of the reference in art. 219 CPC. The CPC also recognizes different types of initiating acts. In summary proceedings, proceedings are initiated by means of a petition (art. 252 para. 1 CPC). We might also mention the conciliation petition (art. 202 CPC) and the joint petition or unilateral request for divorce (art. 274 CPC). However, these acts are not covered by art. 220 CPC, which is limited to requests within the meaning of arts. 221 and 244 CPC.
2 As a written pleading, the application must be filed on paper or electronically, and must be signed (art. 130 paras. 1 and 2 CPC). Unlike the simplified or summary procedure (cf. art. 244 para. 1 and 252 para. 2 CPC), the ordinary procedure does not allow the filing of an oral application dictated in the minutes. Similarly, a brief filed by fax or e-mail does not meet the formal requirements of ordinary procedure. An application filed in this way is deemed not to have been submitted, which means that any deadlines cannot be met. If submitted on paper, the request must be delivered to the Swiss Post Office, the court registry or a Swiss diplomatic or consular representation (cf. art. 143 para. 1 CPC). A deed transmitted in electronic form must be provided with a qualified electronic signature in accordance with the Federal Law on Electronic Signatures of March 18, 2016 (art. 130 para. 2 CPC). For the rest, art. 130 ff CPC are applicable as regards formal requirements.
3 The Justitia 4.0 project will have an impact on the application procedures described above. The draft law on electronic communication platforms in the judicial field (P-LCPJ), due to come into force in 2025, provides for the establishment of one or more platforms for the electronic transmission of documents in the judicial field (art. 1 para. 2 let. a P-LCPJ). The draft makes a number of changes to the provisions of the CPC relating to the form of documents. In particular, art. 128c para. 1 P-CPC establishes the principle of compulsory use of an electronic communication platform by the courts and the parties' professional representatives within the meaning of art. 68 para. 2 CPC. Filing an application on an electronic platform within the meaning of the LCPJ will then become the usual way of submitting an application in ordinary proceedings (art. 130 P-CPC).
4 The requirements relating to the content of the application are set out in art. 221 PPC for ordinary proceedings, and in arts. 244 and 252 PPC for summary and simplified proceedings. Please refer to the comments on these provisions.
5 In most cases, the regular filing of a claim is subject to compliance with time limits. In most cases, when conciliation has been attempted, these are the time limits set by the authorization to proceed for filing the claim (art. 209 para. 3 and 4 CPC). In the absence of a prior conciliation procedure, any time limits for taking action may derive from other legislation, such as the definitive registration of a legal hypothec for craftsmen and entrepreneurs (art. 961 para. 3 CC) or the action for discharge of debt (art. 83 para. 2 LP), but also from the CPC itself in the case of validation of provisional measures (art. 263 CPC).
B. Treatment by the court
6 Upon receipt of the request, the court has a number of options open to it. The court has broad discretionary powers in the conduct of the proceedings, although it is required by law to ensure a certain degree of expedition (art. 124 para. 1 CPC).
7 If the statement of claim contains a reparable formal defect, the court sets a deadline for rectifying it (art. 132 para. 1 CPC). This applies in particular if the deed is not signed, or if an appendix such as the authorization to proceed or the power of attorney is missing. The same applies to illegible, inappropriate, incomprehensible or long-winded deeds (art. 132 para. 2 CPC). In certain situations, notably where a copy is missing, the court may rectify the defect itself, at the expense of the author (art. 131 CPC). Finally, it should be remembered that a request submitted in a form not provided for by law (e.g. by e-mail or fax) is deemed not to have been submitted, so there is no possibility of rectifying the deed in such a case (supra no. 2). Where the request received by the court has been sent to it in error, art. 143 para. 1bis nCPC provides, as from its entry into force on January 1, 2025, for its ex officio transmission to the competent court. In this case, art. 63 para. 1 nCPC provides that proceedings are deemed to have been instituted on the date of the first filing of the document.
8 On receipt of the request, the principle of procedural economy requires the court to carry out an initial examination of the conditions of admissibility. Consequently, even at this stage of the proceedings, the court may issue a final decision of inadmissibility (art. 236 para. 1 CPC). In order to limit the risk of a violation of the right to be heard, the court may also order a written exchange limited to compliance with the disputed admissibility condition (art. 125 let. a CPC; infra no. 9). It should be noted that certain conditions of admissibility cannot be examined until the defendant has been heard. This is the case, for example, when jurisdiction by reason of place is not given, but the defendant tacitly accepts the court's jurisdiction (art. 18 CPC). The same applies if the dispute is the subject of an arbitration agreement (art. 61 let. a CPC). In addition, the defendant may expressly or tacitly waive conciliation proceedings in the statement of defence if the amount in dispute exceeds CHF 100,000 (art. 199 para. 1 CPC). In all cases, the court may choose to limit the proceedings and the response to the question of admissibility (art. 222 para. 3 cum 125 let. a CPC).
9 If the claim does not appear to be inadmissible from the outset, and if it is not vitiated by any formal defect, the court will issue the necessary orders of instruction to advance the proceedings. Once the claim has been lodged, the court may require the plaintiff to pay an advance on costs (art. 98 CPC). Payment must be made within the time limit set by the court (art. 101 para. 1 CPC), which may be extended (art. 144 para. 2 CPC); the court will not consider the case if the plaintiff has not complied within a further time limit (art. 101 para. 3 CPC). Art. 222 para. 1 CPC also requires the court to notify the defendant of the claim and set a time limit for filing a response. The question of the order in which the court should proceed is a matter for the court's discretion. Barring special circumstances, procedural economy generally dictates that the claim should not be served on the opposing party until the advance on costs has been paid.
10 For the rest, once the claim has been lodged, the court is responsible for conducting the proceedings (art. 124 para. 1 CPC). It may then issue orders to simplify the proceedings (art. 125 CPC). For example, the court may divide cases (art. 125 let. b CPC) or join the claim to another lawsuit already pending (art. 125 let. c CPC). It may also limit the proceedings to certain questions or conclusions (art. 125 let. a CPC). At this stage of the proceedings, it may make sense to do so if the claim raises an admissibility issue, or if it contains subsidiary claims that could be time-consuming to deal with. In our view, there is nothing to prevent the court from issuing such orders before hearing the opposing party. On the contrary, the court is guided in its assessment by procedural economy (art. 124 para. 1 CPC). In this respect, it is appropriate to proceed in this way when substantial procedural steps can be avoided, as is the case with the filing of a response (cf. art. 222 para. 3 CPC).
II. Effects
A. Determining the amount in dispute and the applicable procedure
11 The filing of a claim has several procedural consequences. Firstly, the Federal Court has stated that the filing of the claim is the decisive moment for calculating the amount in dispute. This is the corollary of the plaintiff's obligation to indicate the amount in dispute in his claim (art. 221 para. s1 let. c CPC). The disputed value is calculated in accordance with the principles set out in art. 91 ff CPC. Subject to manifest exaggeration or disagreement between the parties on this point (art. 91 para. 2 CPC), the amount in dispute corresponds to the amount indicated by the plaintiff. It is on the basis of this amount that the applicable procedure is determined.
12 It follows from the above that the applicable procedure is determined at the time the claim is lodged; it is therefore from this moment that the rules relating to ordinary procedure apply. Consequently, it is possible for the plaintiff to reduce his or her submissions once leave to proceed has been granted; the applicable procedure is then determined on the basis of the reduced submissions. Similarly, it is possible, in the application, to modify the submissions that were the subject of the authorization to proceed under art. 227 CPC by analogy, without taking into account the requirement that the proceedings be identical. The determination of the applicable procedure is the responsibility of the court, since it is a condition of admissibility that must be examined ex officio (art. 60 CPC). The plaintiff is not obliged to indicate the applicable procedure in his claim. At the very most, it must comply with the formalities applicable to the drafting of documents in the proceedings concerned. In the event of doubt as to the applicable procedure, or at the request of a party, the court may determine it, depending on the circumstances, by means of an order of instruction, an incidental decision or a final decision (art. 219 CPC no. 10).
B. Litigation
13 Art. 62 para. 1 CPC provides that proceedings are initiated by the filing of the conciliation petition, the application, the petition or the joint petition for divorce. This means that, in most cases, the filing of the petition does not have the effect of creating lis pendens, as long as a prior conciliation procedure has taken place. Only if the conciliation procedure is excluded (art. 198 CPC), optional (art. 199 para. 3 nCPC) or if the parties have waived it (art. 199 CPC), does the filing of the claim coincide with the moment of lis pendens. In this case, it is also the court's responsibility to issue the parties with a certificate of filing of the document initiating proceedings (art. 62 para. 2 CPC).
14 It should be noted that under art. 65 CPC, it is from the transmission of the claim to the defendant, and not from the lodging of the claim, that the plaintiff must continue the proceedings (Fortführungslast). Withdrawal of the deed from this point onwards will, in principle, lead to res judicata.
Bibliography
Bohnet François, Les défenses en procédure civile suisse, RDS 2009 II 185 ss.
Frei Nina j., in: Hausherr Heinz/Walter Hans Peter (édit.), Berner Kommentar, Schweizerische Zivilprozessordnung, Art. 1-352 und Art. 400-406 ZPO, Berne 2012.
Grobéty Laurent, Le cumul objectif d’actions en procédure civile suisse, thèse Fribourg, Genève/Zurich/Bâle 2018.
Heinzmann Michel, in : Chabloz Isabelle/Dietschy-Martenet Patricia/Heinzmann Michel (édit.), Petit commentaire CPC, Code de procédure civile, Bâle 2020.
Heinzmann Michel, La procédure simplifiée – Une émanation du procès civil social, thèse d’habilitation Fribourg, Genève/Zurich/Bâle 2018.
Hohl FabienneBovey Grégory, Dix ans de Code de procédure civile : bilan et perspectives, RDS 2021 I 509 ss.
Killias Laurent, in: Hausherr Heinz/Walter Hans Peter (édit.), Berner Kommentar, Schweizerische Zivilprozessordnung, Art. 1-352 und Art. 400-406 ZPO, Berne 2012.
Leuenberger Christoph, in: Sutter-Somm Thomas/Hasenböhler Franz/Leuenberger Christoph (édit.), Kommentar zur Schweizerischen Zivilprozessordnung (ZPO), 3e éd., Zurich 2016.
Pahud Eric, in: Brunner Alexander/Gasser Dominik/Schwander Ivo (édit.), Schweizerische Zivilprozessordnung ZPO, 2e éd., Zurich/St.-Gall 2016.
Richers Roman/Naegeli Georg, in: Oberhammer Paul/Domej Tanja (édit.), Kurzkommentar, Schweizerische Zivilprozessordnung, 3e éd., Bâle 2021.
Tappy Denis, in: Bohnet François et al. (édit.), Commentaire romand, Code de procédure civile, 2e éd., Bâle 2019.
Weber Roger, in: Oberhammer Paul/Domej Tanja (édit.), Kurzkommentar, Schweizerische Zivilprozessordnung, 3e éd., Bâle 2021.
Willisegger Daniel, in: Infanger Dominik/Spühler Karl/Tenchio Luca (édit.), Basler Kommentar, Schweizerische Zivilprozessordnung (ZPO), 3e éd., Bâle 2017.