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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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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)
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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. Subject matter and scope of application
- II. Opening and justification of the decision
- III. Variants of the opening of the decision (para. 1)
- IV. Subsequent written statement of reasons or waiver of challenge (para. 2)
- V. Reservation of the Federal Supreme Court Act (para. 3)
- VI. Enforceability of decisions opened in the dispositif
- VII. Effect of res judicata in the dispositive of decisions that have been opened
- VIII. CPC revision
- Materials
- Bibliography
I. Subject matter and scope of application
1 Art. 239 CPC regulates the modalities of the opening of decisions. These include in particular the form of the opening as well as the question of whether, when and how decisions must be reasoned.
2 Art. 239 CPC applies to first instance decisions made in ordinary, simplified or summary proceedings. Decisions made in family law proceedings (namely divorce proceedings) are also covered by the norm. In principle, it does not apply to decisions on appeal, especially since the CPC stipulates that decisions of the appellate and appeal courts must always be issued with written reasons (Art. 318 para. 2 CPC and Art. 327 para. 5 CPC). Rulings that are newly issued after an application for revision has been approved must also be issued with written reasons (Art. 333 para. 3 CPC). The same applies to decisions of sole cantonal instances pursuant to Art. 5-8 CPC. The opening of decisions of the Federal Supreme Court is governed by Art. 60 FSCA.
3 As far as the type of decision is concerned, Art. 239 CPC applies only to decisions governed by Chapter 5 of the CPC, i.e. to final decisions, to partial decisions, to interim decisions and to decisions on precautionary measures.
4 The final decision leads to a termination of the proceedings before the respective instance by a decision on the merits or a decision not to proceed (Art. 236 CPC). A partial decision, which is not expressly regulated in the CPC and by which the court rules on part of the legal claims in the event of an objective or subjective accumulation of claims, is therefore also deemed to be a final decision. The court may make an interim decision if a final decision can be reached immediately by a different assessment by the higher instance, thus saving a significant amount of time or costs (Art. 237 CPC).
5 In contrast, Art. 239 CPC is not relevant for procedural orders and "other first instance decisions" (cf. Art. 319 lit. b CPC). However, it does not follow from this that such court orders never have to be reasoned; rather, a duty to state reasons may also arise directly from the right to be heard in individual cases.
6 The order to dismiss a case as a result of a settlement, acknowledgement of the action or withdrawal of the action pursuant to Art. 241 para. 3 CPC is a purely declaratory act, as these surrogate decisions end the proceedings immediately. The order to dismiss should nevertheless state the reason for the dismissal (settlement, acknowledgement of the action or withdrawal of the action), but does not need to be justified beyond that. The situation is different with the dismissal of the proceedings due to lack of subject-matter for other reasons pursuant to Art. 242 CPC. While the proceedings in the cases of Art. 241 CPC end by operation of law, the dismissal of the proceedings due to lack of object for other reasons requires a judicial finding to that effect. This determination must be justified at least summarily, whereby the justification may be provided at the request of a party in accordance with Art. 239 CPC.
7 In principle, reasons must also be given for the decision on the costs of the proceedings (Art. 104 f. CPC). Here, too, the modalities are governed by Art. 239 CPC. The statement of reasons should indicate the principles of allocation on which the court has based its decision. The statement of reasons may be brief if the distribution is made according to the subordinate principle (cf. Art. 106 CPC).
8 According to Federal Supreme Court case law, no reasons need to be given for the decision on the amount of the legal costs as long as the court complies with the tariff framework and the parties do not submit any extraordinary circumstances. An exception to this is the case where the court fixes the party compensation at a certain amount that does not correspond to the usual compensation granted in practice, in deviation from a submitted cost note; such a decision must be justified. The submission of a cost note can therefore increase the requirements for the obligation to state reasons with regard to the costs decision. However, this case law only applies if the court decides on the cost consequences at the end of the main proceedings. On the other hand, a duty to state reasons exists if the costs and compensation consequences form the actual subject matter of the proceedings.
9 According to the opinion expressed here, the assessment of the costs of proceedings must be justified even if the tariff framework is adhered to, if the relevant tariff grants the court a margin of discretion of a certain scope. While the tariff limits are relatively narrow, e.g. in the case of decisions in summary cases under debt collection law, the cantonal tariffs regularly grant the courts considerable discretion, especially in property disputes with a high amount in dispute. In which cases a statement of reasons is appropriate is difficult to describe in general terms. A brief statement of reasons for the costs decision is recommended, regardless of the amount of the legal costs. If a decision is reasoned in writing, either directly or at the request of a party (Art. 239 para. 2 CPC), we believe that reasons should in any case be given for a determination of the costs of proceedings starting from a mid four-digit amount, stating the tariff bases, including the surcharges and reductions applied. Otherwise, it is hardly possible for the parties to properly challenge the costs decision.
10 It should also be noted in this context that Art. 110 CPC expressly provides for the independent challenge of the costs decision by means of an appeal. For this reason, the decision on costs must be substantiated in accordance with the aforementioned principles even if the remaining part of the decision is not subject to a duty to state reasons, which is the case in particular with the write-off decision pursuant to Art. 241 para. 3 CPC. The decision on costs contained in the write-off order may initially be issued in the dispositive, but must be substantiated in writing at the request of a party within the ten-day period pursuant to Art. 239 para. 2 CPC.
11 Art. 239 CPC also covers decisions that the conciliation authority may make at the request of the claimant in property disputes up to an amount in dispute of CHF 2,000 (Art. 212 CPC). The statement of reasons for proposed judgments submitted by the conciliation authority is voluntary (Art. 210 para. 2 CPC). Approvals to sue do not constitute decisions and do not require a statement of reasons. However, the order on the costs of the conciliation proceedings contained in the authorisation to sue (cf. Art. 209 para. 2 lit. d CPC) has the character of a decision and can be challenged by means of an appeal on costs. The cost decisions of the arbitration authorities are usually subject to narrow tariff limits, which is why a statement of reasons for the cost decision usually does not appear to be mandatory. However, there is nothing to prevent the parties from setting a deadline for requesting a written statement of reasons for the costs decision in these cases in application of Art. 239 CPC.
II. Opening and justification of the decision
A. Opening
12 The "opening" of the decision means its communication to the parties, which is apparent in particular from the French and Italian wording ("communication" and "notificazione" respectively). The decision becomes legally existent when it is communicated to the parties and only becomes binding from that point on. A subsequent amendment of the decision by the court is excluded (subject to a restoration, explanation or correction). The time limits triggered by the decision also begin to run when it is issued.
13 Only a decision that contains all the elements specified in Art. 238 CPC is deemed to have been duly issued. The notification of the decision must be made in a form in accordance with Art. 138 CPC (physical service), Art. 139 CPC (electronic service) or Art. 141 CPC (public notice). Delivery of the decision at the main hearing in accordance with Art. 239 para. 1 lit. a CPC constitutes an independent form of service.
14 A party must not suffer any disadvantage from the defective opening. In principle, a defective opening leads to contestability and only exceptionally to nullity of the decision. It must be examined in each individual case whether the party concerned has actually been misled by the alleged defect in the opening of proceedings and has thus been disadvantaged. If this is not the case, the defect in the opening of the proceedings is of no consequence.
B. Statement of reasons
1. Duty to state reasons and requirements
15 According to Art. 239 CPC, a decision must be reasoned in writing if the court so decides or if a party requests it within ten days of the opening. The written statement of reasons referred to in Art. 239 CPC refers to the reasons for the decision pursuant to Art. 238 lit. g CPC. The brief oral statement of reasons (Art. 239 para. 1 lit. a CPC), which may be communicated to the parties at the main hearing, essentially serves to explain the decision. It does not replace the written statement of reasons and does not have to meet high requirements in this respect.
16 Outside of Art. 239 CPC, a duty to state reasons may arise directly from the parties' right to be heard (Art. 29 para. 2 Federal Constitution and Art. 53 CPC). Such a duty to state reasons derived directly from the right to be heard is primarily relevant for procedural orders and "other first instance decisions", as Art. 239 CPC does not apply to these types of decisions. Procedural orders and "other first instance decisions" are appealable if the law so provides or if they threaten to cause a disadvantage that cannot be easily remedied (Art. 319 lit. b CPC). If the ordering first instance did not provide reasons in such cases, the parties would hardly be able to file a reasoned challenge and their right to a fair hearing would be violated. For this reason, reasons must be given for procedural orders and "other first instance decisions" at least if they are (presumably) appealable.
17 The right to be heard also imposes certain requirements with regard to the scope of the statement of reasons: In principle, the statement of reasons must provide information on the history of the proceedings, state the relevant facts (including any evidence) and refer to the legal basis on which the court assessed the claims at issue. A summary of the parties' positions shall also be included in the statement of reasons. However, it is not necessary for the court to address all of the party's positions in detail and to expressly refute each and every argument. The statement of reasons must briefly state the considerations that guided the court and on which its decision is based. It should enable the parties to give an account of the scope of the decision and to be able to challenge it properly.
18 In practice, it is not uncommon to find so-called "that-decisions", the reasons for which consist of a single sentence or a string of various subordinate clauses each introduced with the conjunction "that" ("Whereas [...]"). Such justifications should be avoided, as they can make it difficult to read and understand. The Federal Supreme Court generally considers "that" decisions to be admissible only in the case of shorter judgments. However, the decisive factor remains whether the decision is easily comprehensible in the specific individual case.
2. Distinction from the dispositive
19 The statement of reasons must be distinguished in particular from the dispositive, whereby a distinction must be made between the (written) dispositive within the meaning of Art. 239 CPC and the dispositive pursuant to Art. 238 lit. d CPC:
20 The dispositive pursuant to Art. 238 lit. d CPC refers to the judgment formula as a necessary component and actual core of the decision. The judgment formula expresses the result of the decision in a concise form. It does not have to contain a statement of reasons, but may exceptionally refer to the statement of reasons "in the sense of the considerations" if a complete and unambiguous formulation of the judgment formula is not possible. In principle, the dispositive must reflect the motions filed and provide a response to all motions. The judgment formula must clarify what is awarded to the appealing party and what is the subject of any enforcement. The costs order pursuant to Art. 104 CPC also forms part of the judgment formula.
21 In contrast, the (written) dispositive pursuant to Art. 239 CPC covers not only the judgment formula within the meaning of Art. 238 lit. d CPC, but all elements mentioned in Art. 238 CPC with the exception of the reasons for the decision (i.e. the reasons for the judgment) pursuant to Art. 238 lit. g CPC. If the decision is opened with reasons, the relevant main remedy of appeal or complaint must be mentioned. In the case of decisions of the last or only cantonal instance, reference must be made to the possibility of appeal in civil matters and subsidiary constitutional appeal to the Federal Supreme Court in accordance with the Federal Supreme Court Act. If, on the other hand, the decision is opened without a statement of reasons in the dispositive, it must be pointed out that a written statement of reasons may be requested within ten days, otherwise a waiver of the right to challenge the decision by appeal or complaint is assumed (cf. Art. 239 para. 2 CPC).
III. Variants of the opening of the decision (para. 1)
22 The first paragraph of Art. 239 CPC regulates the variants of the opening of the decision, which are presented below. The wording and the system of Art. 239 para. 1 CPC result in three variants of the opening of the decision: the opening of a reasoned decision, the opening of the unfounded decision at the main hearing and the opening of the unfounded decision by service on the parties. In addition, other variants of the notification of the decision have emerged in practice, which will also be discussed below.
23 The court is guided by various considerations when deciding on the type of opening. For example, in simple cases, the parties will often be better served by a quick opening without a written statement of reasons. If the written statement of reasons is time-consuming, the court may feel compelled to initially dispense with such a statement in order to relieve itself. Conversely, the court will tend to issue its decision directly in writing if a detailed draft judgment is already available or if extensive clarifications have been made by the court. A direct written statement of the reasons for the decision may also be considered if it becomes apparent in the course of the proceedings that one of the parties will contest the decision. The court should also consider whether the scope of the legal force of its judgment is clear if it is (only) opened in the dispositive.
24 The choice of the type of opening is the sole responsibility of the court. The parties therefore have no right to demand that the court choose a particular method of opening the proceedings (e.g. opening in the dispositive in order to save costs). However, if a decision is opened in the dispositive, a party may request a written statement of reasons.
A. Opening with reasons
25 Art. 239 para. 1 CPC is an optional provision. The court is therefore free to open the decision directly with written reasons. In this case, the opening and the statement of reasons for the decision are made at the same time.
B. Opening without reasons
26 Art. 239 para. 1 CPC also allows the court of first instance to open the decision to the parties without a written statement of reasons, whereby the law provides for either the handing over of the dispositive at the main hearing with a brief oral statement of reasons or the service of the dispositive.
1. Delivery of the decision with a brief oral statement of reasons (lit. a)
27 The court may hand over the decision to the parties at the main hearing and give brief oral reasons (Art. 239 para. 1 lit. a CPC). This is an independent form of opening the proceedings, which can be used in addition to the forms of service regulated in Art. 138 et seq. Code of Civil Procedure. The opening of the decision at the hearing presupposes that the parties are actually present. A party in default at the main hearing may therefore rely on being served with the decision in accordance with Art. 138 et seq. CPC will be served on him or her.
28 The short oral statement of reasons provided for by law is a rule of order. A dispositive handed over at the main hearing is therefore deemed to have been opened even if the court does not provide a brief oral statement of reasons. However, the court should definitely make use of the opportunity to explain its decision. The oral brief at the main hearing offers an excellent opportunity to convey the reasons for the decision to the parties in an understandable form. If there is a contradiction between the oral brief statement of reasons and a later written statement of reasons, only the written statement of reasons is authoritative.
2. Service of the decision on the parties (lit. b)
29 Instead of handing over the decision at the main hearing, the court may also serve the unfounded decision on the parties (Art. 239 para. 1 lit. b CPC). In doing so, it must comply with the forms pursuant to Art. 138 et seq. Code of Civil Procedure. In the literature, it is sometimes pointed out that the court should, if possible, refrain from opening the decision in this way, since each party has the right to know why it has lost or won. Nevertheless, in practice, the service of the dispositive without reasons is probably the most frequent form of opening.
3. Service of the dispositive with a brief written statement of reasons (notes)
30 In court practice, another form of opening the decision has emerged that is not expressly regulated in the law. For example, the decision served on the parties in accordance with Art. 239 Para. 1 lit. b CPC is sometimes accompanied by a brief written statement of reasons or notes. The doctrine is almost unanimous that such written comments are admissible in principle. According to the opinion expressed here, such comments make sense in any case (and are sometimes even required). The filing of a summary statement of reasons will tend to discourage a party from requesting a full statement of reasons. It is obviously in the interest of the parties to obtain at least a rough outline of the relevant reasons for the decision. To a certain extent, the written comments take the place of the oral brief statement of reasons and have proven their worth in practice.
31 Nevertheless, certain principles must be observed when drafting observations. For example, for the sake of clarity, the parties must be made aware that the note on the dispositive does not constitute a (complete) written statement of the reasons for the decision and that such a statement may be requested within ten days (Art. 239 para. 2 CPC). The note must then be summary and summarise the essential line of argumentation of the court. Inadmissible, however, are notes that essentially correspond to a complete written statement of reasons in terms of their scope and content. On the one hand, such extensive comments do not lead to any substantial relief for the court, which means that a waiver of the opening of the reasoned decision hardly seems justified. On the other hand, an excessively detailed note gives the losing party an advantage with regard to the challenge of the decision, because it allows it to draft its notice of appeal already during the time limit for the application for the subsequent delivery of a written statement of reasons and the time until its delivery. This unequal treatment may constitute a violation of the Convention and constitutional right to equality of arms. Where the borderline between admissible comments and inadmissible factual reasons for a decision lies can only be assessed in a specific individual case. A sense of proportion is called for here on the part of the court. In general, it is advisable to focus on the conclusions in the note and to keep their derivation as concise as possible. Nevertheless, the most central considerations must have their place in the required brevity. A party that does not recognise its most important arguments in the note will hardly forego a written statement of the reasons for the decision.
4. Service of the dispositive after oral communication of the decision
32 It is also not expressly provided for by law to communicate the decision orally during the main hearing (if necessary with a brief statement of reasons), but to dispense with the handing over of the written decision and to serve it instead pursuant to Art. 239 para. 1 lit. b CPC. Such a procedure does not appear to be problematic in principle, although the mere oral communication of the decision without handing over the dispositive does not constitute a formal opening of the decision. In this case, only the subsequent service of the decision is considered to be a formal opening. Of course, the court is free to directly serve the parties with a written reasoned decision after oral communication of the decision at the main hearing.
IV. Subsequent written statement of reasons or waiver of challenge (para. 2)
33 If the court has issued its decision without a written statement of reasons, a written statement of reasons must be provided subsequently in accordance with Art. 239 para. 2 (sentence 1) CPC if a party requests this within ten days of the decision being issued. The ten-day period is of a statutory nature and cannot be extended. The right to request a written statement of reasons is a consequence of the right to be heard and is therefore available to both parties - even if one party has completely prevailed. It is permissible to demand a higher court fee for the subsequent written statement of reasons, and many cantons have made use of this. However, it is not permissible to unilaterally impose higher costs on a party if it requests a statement of reasons for the decision, as both parties have the right to know why they lost or won. The distribution of the court costs generated by the statement of reasons for the decision therefore follows the general principles of distribution (and not the polluter pays principle).
34 The time limit for filing an appeal or a notice of appeal does not start to run until the written statement of the grounds for the decision is served (Art. 311 para. 1 CPC and Art. 321 para. 1 CPC).
35 If a party mistakenly lodges an appeal with the appellate instance against a decision that is not reasoned in writing within the ten-day period instead of requesting written reasons, the appeal must in principle be forwarded to the first instance as a request for written reasons. However, according to Federal Supreme Court case law, it is not contrary to federal law for the appellate instance not to hear the appeal against the unfounded decision, provided that the unfoundedly opened decision unambiguously indicated that a waiver of the challenge would be assumed if reasons were not requested within the time limit. However, such a formalistic interpretation of Art. 239 para. 2 CPC is hardly compatible with the right to be heard - at least in the case of parties who are not familiar with the law.
36 The rejection of a request for a written statement of the reasons for the judgment constitutes a final decision, which in turn requires a notice of appeal.
37 According to Art. 239 para. 2 (second sentence) CPC, if no written statement of reasons is requested within the time limit, this is deemed to be a waiver of the right to challenge the decision by appeal. However, even the party that has not requested written reasons may challenge the decision by appeal or complaint if the other party has requested written reasons. An application for revision remains possible even after an appeal has been waived in accordance with Art. 239 para. 2 CPC, especially since revision is possible in accordance with Art. 328 et seq. CPC, if the relevant requirements are met, to correct a final decision.
V. Reservation of the Federal Supreme Court Act (para. 3)
38 Pursuant to Art. 239 para. 3 CPC, the provisions of the Federal Supreme Court Act on the opening of decisions that may be appealed to the Federal Supreme Court are reserved. The reservation refers specifically to Art. 112 FSCA. This provision stipulates that decisions that are subject to appeal to the Federal Supreme Court must always be notified to the parties in writing with the reasons for the decision (para. 1). Oral notification at the court hearing is not excluded, but is not sufficient in itself. It is also permissible for the decision to be issued in advance in the dispositive with subsequent delivery of the written statement of reasons.
39 In the area of civil law, Art. 112 FSCA covers the decisions of the cantonal appeal and appellate authorities as well as the decisions of the sole cantonal authorities pursuant to Art. 5-8 CPC. The CPC already takes into account the reservation of the FSCA with regard to decisions of the cantonal appellate bodies insofar as appeal and complaint decisions must be issued with written reasons (Art. 318 para. 2 CPC and Art. 327 para. 5 CPC).
40 However, with regard to decisions of only one cantonal instance, there is no provision in the CPC that would make it mandatory to provide written reasons for such decisions. The question therefore arises whether Art. 239 para. 1 CPC does not apply to decisions of sole cantonal instances despite the reservation of Art. 112 FSCA, so that such decisions do not have to be reasoned in writing in every case. The background to this question is Art. 112 para. 2 FSCA. This provision provides that courts may, in accordance with cantonal law, issue their decision without a written statement of reasons and that the parties may request a complete copy within 30 days.
41 According to the majority opinion, there is no room for Art. 112 para. 2 FSCA in the area of civil procedure law since the entry into force of the Federal Code of Civil Procedure, because civil procedure law is now conclusively regulated at federal level. According to the minority opinion, however, the failure to adapt Art. 112 para. 2 FSCA to Art. 239 para. 1 CPC could be a legislative oversight. If one follows this view, it would be permissible for only cantonal instances to issue unfounded decisions and to give the parties the opportunity to request a statement of reasons within 30 days. A legislative clarification would be welcome in any case.
VI. Enforceability of decisions opened in the dispositif
42 In connection with Article 239 of the Code of Civil Procedure, the issue of enforceability in the dispositive of decisions that have been opened deserves special attention. The problem of the enforceability of unfounded decisions arises from the fact that the time limit for appeal against a first instance decision only starts to run with the service of the written statement of reasons (Art. 311 para. 1 CPC and Art. 321 para. 1 CPC), but the handing over or service of the (unfounded) decision nevertheless constitutes the opening of the decision. Does the losing party now have to put up with enforcement (cf. Art. 336 para. 1 CPC) if it cannot even appeal against the decision that is unfavourable to it?
43 The question of whether a decision opened in the dispositive is enforceable only arises if the appeal open against it does not have a suspensive effect by law. This applies to appealable decisions (Art. 325 para. 1 CPC) as well as to appealable decisions on precautionary measures and counterstatement requests (Art. 315 para. 4 CPC).
44 In the literature and in cantonal practice, the question of the enforceability of decisions opened in the dispositive is answered differently. A majority of the higher cantonal courts and a part of the doctrine assume that decisions that have only been opened in the dispositive are also enforceable from the time of opening, provided that there is no legal remedy available against them that would impede enforceability. In order to defend itself against the threat of enforcement until the written statement of reasons was available, the losing party could appeal to the appellate court in analogous application of Art. 261 et seq. of the Code of Civil Procedure. CPC, the losing party may apply to the appellate court for a precautionary stay of enforceability.
45 Another part of the doctrine, on the other hand, takes the view that decisions issued in the dispositive are not enforceable until the written statement of reasons is available or until the deadline for requesting such a statement has expired unused. This view is also shared by the Zurich Supreme Court, which assumes that there is a gap in the CPC and applies Art. 112 para. 2 (sentence 3) FSCA by analogy. According to this provision, the decision is not enforceable until the deadline for requesting a written statement of reasons has expired unused or the complete copy has been opened. A ruling of the Federal Supreme Court also points in this direction, although it concerned an appeal decision to which Art. 112 para. 2 FSCA applies directly.
46 In our opinion, the former solution is more convincing. The Zurich Supreme Court justifies its negative position primarily on the grounds that, if the decision opened in the dispositive were immediately enforceable, the losing party would run the risk that its recovery would no longer be recoverable after an unjustified enforcement due to a deterioration of the opponent's assets that had occurred in the meantime. It must be countered that the prevailing party, who cannot yet enforce for lack of justification, faces the same danger. However, insofar as a decision - even if not yet substantiated - exists, the interest of the prevailing party is to be weighted higher than that of the losing party, since in this case there is an increased probability that the claim actually exists.
47 It should also be noted that the practice of the Zurich Supreme Court does not follow a clear line. For example, it has itself relativised its practice in connection with a bankruptcy order in the dispositive and even argued the opposite in a decision concerning the time limit for raising an action for annulment (Art. 83 para. 2 SchKG). However, the question of whether a decision opened in the dispositive is amenable to enforcement should not depend on the individual case, but should be answered uniformly in terms of procedural law and doctrine. An analogous application of Art. 112 para. 2 FSCA would then contradict the wording and the system of the law and would have the consequence that, contrary to Art. 336 para. 1 CPC, decisions subject to appeal would be final upon their opening in the dispositive, but not enforceable.
48 In addition, the ordering of precautionary measures in the decision corresponds to a practical need, especially since the written statement of reasons can be time-consuming even in the case of decisions on measures. This is because, according to the CPC, immediate enforceability is a central element of decisions on measures, which already follows from Art. 315 para. 4 lit. b CPC. If decisions on measures were only enforceable upon presentation of the written reasons for the decision, this would have the consequence that the first instance would in fact be required to always open decisions on measures immediately with written reasons. Only in this way could it be ensured that the measures could fulfil their intended function - to establish a temporary peace order between the parties as quickly as possible. Denying the enforceability of decisions opened in the dispositive would be detrimental to swift and effective legal protection.
49 For the sake of completeness, it should be noted that appellate courts and only cantonal courts have to cope with these disadvantages under the current law. In the course of the revision of the CPC, however, an adjustment is planned.
50 If one follows the approach according to which the losing party who wants to temporarily prevent the enforcement of a decision opened in the dispositive has to turn directly to the appellate instance, this solution must also apply mutatis mutandis if the decision opened in the dispositive does not contain any enforceable orders. This is the case in particular with dismissal decisions and decisions not to enter proceedings. In such cases (e.g. when a request for measures is rejected), the losing party must be able to apply to the appellate court for protective measures before receiving the written reasons for the decision.
51 The same applies if the prevailing party is threatened with a disadvantage that cannot be easily remedied because an appeal with suspensive effect is available against the decision, enforceability therefore does not yet occur by law and the party would therefore have to wait until the statement of reasons before initiating enforcement. In such cases, it may be justified for the appellate court to order early enforceability even before the reasons for the decision are available.
VII. Effect of res judicata in the dispositive of decisions that have been opened
52 Another problem that arises in connection with decisions opened in the dispositive concerns the res judicata effect of such decisions. As already mentioned, the opening of decisions in the dispositive is probably the most frequent form of opening in practice. This form of opening may offer certain advantages. However, it also entails risks that should not be underestimated. If neither party requests a written statement of reasons, legal uncertainties may arise with regard to the legal effect of the unfounded decision.
53 According to the case law of the Federal Supreme Court, a decision only becomes legally binding in the form in which it is expressed in the judgment. In many cases, however, the scope of the decision can only be ascertained from the considerations in the judgment. It is therefore possible that the legal effect of a judgment opened in the dispositive remains unclear.
54 This is the case in particular if the final judgment merely states that the action is dismissed. There may be various reasons for this result. It is conceivable that the claim was denied in principle. It is also possible that the action was dismissed because there was a lack of substantive legitimacy, the maturity of the claim or the occurrence of a condition. It would also be possible that the claim was extinguished as a result of offsetting. The dispositive alone does not provide any clarity in this regard.
55 In the case of an alternative objective accumulation of claims, the Federal Supreme Court has even expressly stated that the reasons for the judgment must indicate the extent to which the court has judged the individual causes of action to be legally valid. The same applies in general to cases in which the court has to assess a partial action, since in certain constellations it is only evident from the reasons for the judgment to what extent a certain claim has been examined. However, it goes without saying that recourse to the reasons for the judgment is only possible if such reasons are available at all. This is precisely not the case with decisions opened in the dispositive.
56 The aforementioned ambiguities regarding the effect of res judicata must be avoided. Therefore, if the scope of the decision is unclear, the parties are well advised to request a written statement of the reasons for the decision (unless such ambiguity would give them tactical advantages). In principle, the parties may request an explanation of the decision even after the deadline for requesting a written statement of reasons has expired. An explanation is admissible, inter alia, if the dispositive is unclear (Art. 334 para. 1 CPC), which is always the case if the scope of the res judicata is uncertain. With the explanation, the court makes its original intention known. The prerequisite for this is that the court can still reconstruct the intention of the court, for which there is less and less guarantee as time passes. If the content of the decision cannot be determined and an explanation is not (or no longer) possible, the decision has no legal force.
57 However, it cannot be the sole task of the parties to be concerned about clarifying the legal effect of decisions by requesting a written statement of reasons or an explanation. On the contrary, the courts should refrain from issuing decisions that need to be explained, the scope of which is not clear from the dispositive. This does not necessarily require a (complete) written statement of the reasons for the judgment. Rather, the court may limit itself to stating the relevant reasons for the decision in a note to the operative part, thus clarifying the extent to which the claims in dispute (and any set-off claims) have been assessed.
VIII. CPC revision
58 It is currently difficult to assess what changes the current revision of the CPC will bring about in connection with the opening and justification of decisions, especially since there are still some fundamental discrepancies between the two Councils. Two relevant aspects of the parliamentary deliberations to date are briefly examined below.
A. Duty to state reasons for decisions of higher and sole cantonal courts
59 In the course of the revision of the CPC, Art. 318 para. 2 CPC and Art. 327 para. 5 CPC, according to which appeal and appeal decisions must always be issued with a written statement of reasons, are to be deleted or adapted to Art. 239 CPC. This innovation is to be welcomed in principle and also allows appeal decisions to be opened in the dispositive.
60 The National Council and the Council of States then decided to amend Art. 112 para. 2 FSCA. The revised version should now also allow the courts to issue decisions without a written statement of reasons in accordance with federal law (namely Art. 239 CPC). This provision is also to be welcomed and underlines the fact that even higher and sole cantonal instances can issue their decisions without written reasons.
61 A certain ambiguity remains with regard to the question of the period within which the parties must request written reasons for decisions of higher and sole cantonal instances, especially since Art. 112 para. 2 FSCA provides for a period of 30 days, whereas Art. 239 para. 2 CPC provides for a period of ten days. Since Art. 318 para. 2 CPC and Art. 327 para. 5 CPC (in the version adopted by the National Council and the Council of States) refer to Art. 239 CPC, the ten-day time limit will have to be applied to appeal decisions. There is (so far) no explicit provision in the CPC for decisions of sole cantonal instances. Nevertheless, according to the opinion expressed here, the ten-day time limit will also have to be applied to decisions of single cantonal instances, especially since no objective reason for a different treatment of these decisions is apparent. However, a legislative clarification would be appropriate.
B. Enforceability of decisions opened in the dispositif
62 The draft of the revised CPC provided for a new Art. 336 para. 3 CPC, according to which an unfounded decision opened is immediately enforceable if the appeal does not have a suspensive effect and the court has not postponed enforcement. According to the new Art. 239 para. 2bis CPC, this competence should be vested in the court of first instance.
63 The Council of States took a different direction. In the version it adopted, Art. 336 para. 3 CPC clarifies that a decision opened without written reasons should be enforceable under the usual conditions set out in para. 1 of this provision. In addition, the practice already adopted by a majority of the higher cantonal courts, according to which a request for a stay of enforcement can be made to the appellate court even if the reasons for the decision are still outstanding, is to be transferred into law by a new version of Art. 315 para. 5 CPC and Art. 325 para. 2 CPC. In our opinion, this solution proposed by the Council of States deserves preference. However, the National Council subsequently rejected both the Federal Council's proposal and the Council of States' decision after an astonishing vote according to which the current situation did not constitute a known problem, but rather the Council of States' decision would create practical and legal problems. In the view expressed here, it is to be hoped that the Council of States will prevail in the course of further parliamentary deliberations.
64 It should be noted that there are currently no plans to amend the provision in Art. 112 para. 2 FSCA, according to which decisions subject to appeal to the Federal Supreme Court are not enforceable until the deadline for requesting a written statement of reasons has expired unused or until the written statement of reasons is available. This would have the consequence - with the solution adopted by the Council of States - that only decisions of lower cantonal instances that have been opened in the dispositive would be enforceable from the time of opening, but not decisions of higher and sole cantonal instances that have been opened in the dispositive (and are subject to appeal to the Federal Supreme Court). Whether the resulting unequal treatment of decisions of lower and higher or sole cantonal instances is intended is questionable and would also call for clarification by the legislature.
Materials
Amtliches Bulletin des Nationalrats, Sondersession Mai 2022, N. 670 ff.
Amtliches Bulletin des Ständerats, Sommersession 2021, S. 345 ff.
Botschaft zur Schweizerischen Zivilprozessordnung vom 28. Juni 2006, BBl 2006, S. 7221 ff., abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2006/914/de/pdf-a/fedlex-data-admin-ch-eli-fga-2006-914-de-pdf-a.pdf, besucht am 25. Juli 2022.
Botschaft zur Änderung der Schweizerischen Zivilprozessordnung (Verbesserung der Praxistauglichkeit und der Rechtsdurchsetzung) vom 26. Februar 2020, BBl 2020, S. 2697 ff., abrufbar unter https://fedlex.data.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2020/653/de/pdf-a/fedlex-data-admin-ch-eli-fga-2020-653-de-pdf-a.pdf, besucht am 25. Juli 2022.
Fahne 2022 Ia N, Sondersession Mai 2022, abrufbar unter https://www.parlament.ch/centers/eparl/curia/2020/20200026/N22%20D.pdf, besucht am 25. Juli 2022.
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