I. The principle of good faith (Art. 52 para. 1 CPC)

A. Fundamentals

1 Art. 52 para. 1 CPC requires all persons involved in civil proceedings to act “in good faith.” The Civil Procedure Code thus incorporates the “fundamental requirement of the Swiss legal system” contained in Art. 2 para. 1 CC, according to which everyone must act accordingly in the exercise of their rights and in the fulfillment of their obligations. This general legal principle contains a “standard of fairness” and subjects “interpersonal relations to the ethical values of fairness, loyalty [...] and correctness [...]”. Art. 52 para. 1 CPC thus takes up a legal concept whose roots go back to antiquity and which has an effect throughout the entire legal system. Against this background, the provision obliges all parties to the proceedings to behave in good faith and with mutual consideration.

B. Good faith in proceedings

1. Application to civil proceedings

2 The requirement to act in good faith contained in Art. 52 para. 1 CPC refers to civil proceedings as understood in Art. 1 CPC. The reference to civil proceedings already arises from the fact that the provision is contained in the procedural decree. Art. 52 para. 1 CPC also states that the “persons involved in the proceedings” must act in good faith. Even if the applicability of the principle enshrined in Art. 52 para. 1 CPC is thus limited to civil proceedings, it nevertheless covers them in their entirety. This is evident from its inclusion among the procedural principles (Art. 52-58 CPC), i.e. the “most important normative guidelines of civil procedure law” that characterize the nature of every (civil) proceeding. The reference in Art. 52 para. 1 CPC to civil proceedings has a variety of effects and must be borne in mind when the provision is being applied in specific cases.

2. Notes on the history of the provision

3 The application of the principle of good faith in civil proceedings has not always been recognized: For a long time, the Federal Supreme Court saw no need to apply Art. 2 CC in proceedings, in particular because, unlike substantive legal relationships, proceedings could not be conducted in any other way than as provided for by exhaustive statutory provisions, the interests at stake were therefore recognizable in advance and weighed up in detail, and there was no scope for pursuing interests not recognized by law. However, the highest court considered it permissible to apply the provision as a subsidiary principle of cantonal (customary) law. In a groundbreaking essay from 1943, Max Guldener showed that the principle of good faith can play a valuable role in civil proceedings by preventing the abusive exercise of procedural rights, even if the chosen course of action is based on the wording of the law. He explained this clearly: “If private rights must be exercised in good faith, it cannot be permissible to use tactics that contradict this principle when asserting or defending such rights in court.” The Federal Supreme Court subsequently described Art. 2 CC as “a norm of general legal theory” which cannot be denied validity outside civil law, and recognized the principle of good faith as a general principle that also applies to procedural and debt enforcement law. However, insofar as civil procedure was regulated by the cantons, the Federal Supreme Court also assigned the requirement of good faith to cantonal law. Now that the federal government also has legislative competence in the area of civil procedure, the enactment of Art. 52 CPC clarifies that the principle of good faith also applies to federal law in the area of civil procedure law.

3. International aspects

4 The application of the principle of good faith in civil proceedings is also recognized internationally, as demonstrated by its inclusion in the Unidroit Principles of Transnational Civil Procedure. Article 11.1 reads as follows: “The parties and their lawyers must conduct themselves in good faith in dealing with the court and other parties.” This requires the parties in particular “not [to] make a claim, defense, motion or other initiative or response that is not reasonably arguable in law and fact.”

C. Special connection or legally relevant relationship

5 The requirement of good faith governs the content of legal relationships and is linked to a special connection or legally relevant relationship between the parties concerned, within which the rights and obligations arising from the general principle unfold. This is no different in litigation than in other relationships; Art. 52 para. 1 CPC does not differ from Art. 2 para. 1 CC in this respect. Accordingly, the Federal Supreme Court states in connection with the service of court documents: “According to case law, [...] it is only when a case is pending that a procedural legal relationship arises which obliges the parties to act in good faith [...]”. This refers to the legal relationship existing between the parties and between the parties and the court from the beginning of the proceedings, to which the various rights and obligations of the parties can be assigned. Insofar as the persons involved in the procedural legal relationship are concerned, the requirement to act in good faith is therefore linked to this relationship.

6 In the context of civil proceedings and in relation to these, there are other legally relevant relationships which serve as a point of reference for the obligation to behave honestly and correctly under Art. 52 para. 1 CPC. These include, for example, the relationships arising from public law between the state and free legal representation or an expert witness, or the duty to give evidence arising from the law. With regard to these persons, the obligation to act in good faith is linked to these relationships.

II. Addressees of the norm

7 According to Art. 52 para. 1 CPC, all persons involved in the proceedings must act in good faith. The wording of the law thus covers not only the parties and the court and its members, i.e. the judges and other court officials, but also all other parties involved in the proceedings, such as party representatives, interveners and third parties such as witnesses or experts. Nothing else can be inferred from the Italian (“tutte le persone che partecipano al procedimento”) and French (“quiconque participe à la procédure”) versions of the law. However, it can be inferred from the reference in Art. 52 para. 1 CPC to civil proceedings that the application of the provision presupposes a connection with those proceedings. Consequently, the requirement to act in good faith under the Civil Procedure Code can only apply insofar as actions directly related to the proceedings are at issue. Beyond that, for example with regard to the compensation of an expert, only the rights and obligations arising from the specific underlying relationship are decisive.

8 There are no grounds for further restricting the broadly formulated provision of Art. 52 para. 1 CPC: Although there are some doubts as to whether Art. 52 para. 1 CPC also applies to third parties, namely witnesses, experts, and translators who are only indirectly involved in the proceedings, these doubts do not give rise to any further restrictions. Since they are not covered by the procedural legal relationship, the necessary connection for the application of the norm is lacking. However, as explained above, there are also legally relevant relationships with regard to these persons that require the application of Art. 52 para. 1 CPC. In this regard, it must be considered that these persons only participate in the civil proceedings in question (in whatever form) on the basis of these relationships.

III. Normative content

A. Specification of Art. 52 para. 1 CPC

1. Formation of case groups

9 The requirement to act in good faith, i.e. the obligation to conduct proceedings in a fair and correct manner and to show mutual consideration, is extremely vague and can be characterized as a general clause. It needs to be specified in each individual case, whereby Art. 1 para. 2 CC must be followed and rules must be established as the legislature would have done. Case law and doctrine have developed a number of typical case groups that specify the principle of good faith and can be used to resolve new cases. Before presenting some of these case groups, we will briefly discuss a few fundamental aspects that appear to be of particular importance for the specification of Art. 52 para. 1 CPC. We will also show how the general requirement to act in good faith relates to those legal provisions that already contain a specification of this requirement.

2. Consideration of procedural peculiarities

a. European Convention on Human Rights and Federal Constitution

10 Art. 6 no. 1 ECHR and Art. 29 para. 1 FC apply to court proceedings concerning civil claims. The procedural guarantees contained therein (including the guarantee of a fair trial and equal and fair treatment) and their constituent elements have various points of contact with the principle of good faith. These include, for example, the prohibition of excessive formalism and the requirement of expeditious proceedings. Insofar as the relationship between the court and a person involved in the proceedings is concerned, whether this is a party or another person involved in the proceedings, these guarantees must therefore be taken into account when giving concrete form to Art. 52 para. 1 CPC. The court's duty to act in good faith also arises from Art. 9 FC.

b. Good faith in civil litigation

11 The Civil Procedure Code applies in particular to contentious civil matters (Art. 1 lit. a CPC). These include adversarial proceedings between at least two parties aimed at the final, permanent settlement of civil law relationships in the sense of a res judicata. Civil proceedings can therefore be understood as a procedure designed to achieve an authoritative determination of the existence and content of legal relationships between the parties. They serve to enforce their (subjective) rights. As is generally the case in legal transactions, and particularly when establishing their rights, the parties are also bound by the general standard of fairness and good faith when enforcing them. However, the parties to the proceedings are in dispute with each other and must therefore treat each other with a certain degree of mistrust. They cannot be expected to help the other party win the case; the principle of good faith does not prohibit procedural tactics or the implementation of a favorable litigation strategy. Furthermore, the parties have the fundamental right to invoke existing procedural rules and to insist on compliance with procedural formalities. These considerations must be taken into account when applying Art. 52 para. 1 CPC, insofar as the relationship between the parties to the proceedings is affected. As has been noted on several occasions, the principle of good faith must be applied even more cautiously in proceedings than in substantive law.

3. Good faith and prohibition of abuse of rights

12 As explained above, the Civil Procedure Code adopts the general principle for civil proceedings contained in Art. 2 CC. According to its wording, Art. 52 para. 1 CPC only incorporates the requirement to act in good faith under Art. 2 para. 1 CC. However, it is recognized that even in legal proceedings, the manifest abuse of a right does not enjoy legal protection, and Art. 52 para. 1 CPC therefore also encompasses the prohibition of abuse of rights under Art. 2 para. 2 CC. Art. 52 para. 1 CPC thus contains a requirement of loyal conduct and a prohibition of disloyal conduct.

4. Relationship to statutory provisions

a. General

13 Art. 52 para. 1 CPC contains a general legal principle that applies in addition to the individual statutory provisions. How this general principle relates to the statutory provisions in detail requires clarification. The Federal Supreme Court has already commented on this issue at an early stage: “The principle of good faith cannot take precedence over the principle of legality and give the judge the power to modify the law as he sees fit or to disregard it altogether [...]. In particular, reference to the principle of good faith does not allow the judge to introduce into law all kinds of social ethical postulates that the legislature did not intend to include. [...] Moreover, where the purpose of a legal provision is clearly defined or is absolute in nature, as is the case with rules of procedure, there is normally no scope for adaptation to individual cases on the grounds of good faith [...].” Accordingly, there is generally little scope in civil procedure law to deviate from a clear procedural rule on the grounds of breach of good faith or abuse of rights. The general clause in Art. 52 para. 1 CPC should therefore only be invoked if a specific act that is not subject to a special statutory provision must be classified as contrary to good faith.

14 In detail, it must be clarified by interpreting the relevant statutory provisions whether and to what extent the legislature has left room for recourse to good faith. The circumstances described above and the fact that the parties to the proceedings are in dispute with each other call for cautious application of the general principle. At the same time, the law itself provides in Art. 52 para. 1 CPC for the application of good faith in civil proceedings, which is why an overly restrictive application of the general principle is also not justified. This is all the more true given that the Code of Civil Procedure does not contain an exhaustive set of rules governing civil proceedings that would be capable of taking into account all the interests at stake in advance and precluding any need for a general requirement to act in good faith.

15 However, the principle of good faith does not only have an effect as a corrective to individual legal provisions. Rather, it must already be taken into account in the context of the (teleological) interpretation of the individual provisions of the procedural decree, so that these can be applied without contradicting the general principle of law.

b. Examples of legal concretizations of the principle of good faith

16 In detail, reference can be made, for example, to the following concrete examples of the principle of good faith in the Code of Civil Procedure:

17 According to Art. 49 para. 1 CPC, a party wishing to challenge a member of the court must submit a corresponding request to the court without delay as soon as it becomes aware of the grounds for recusal.

18 Art. 56 CPC obliges the court to give a party the opportunity to clarify and supplement its submissions by asking appropriate questions if they are unclear, contradictory, vague or obviously incomplete (so-called judicial duty to ask questions).

19 According to Art. 128 para. 3 CPC, the parties may be punished with a fine for malicious or frivolous litigation.

20 Art. 132 para. 1 and 2 CPC stipulate that defective, illegible, improper, incomprehensible or verbose submissions must be corrected within a judicial grace period. According to Art. 132 para. 3 CPC, however, querulous and abusive submissions are returned without further ado.

21 According to Art. 134 CPC, the summons must be sent at least ten days before the date of appearance, unless the law provides otherwise.

22 If acceptance of a court document is refused, it shall nevertheless be deemed to have been served on the date of refusal if it was delivered in person, in accordance with Art. 138 para. 3 lit. b CPC.

23 Pursuant to Art. 145 para. 3 CPC, the court shall inform the parties ex officio of the exceptions to the suspension of time limits.

24 Art. 148 CPC governs the restoration of missed time limits.

25 Pursuant to Art. 160 CPC, the parties have a duty to cooperate in the taking of evidence. This applies in particular if the opposing party who has to prove a fact is in need of evidence and the party who does not bear the burden of proof is closer to proving it, as well as in connection with the proof of negative facts. The court shall take into account the unjustified refusal to cooperate in the taking of evidence in its assessment of the evidence in accordance with Art. 164 CPC.

B. On the individual case groups

1. Preliminary remarks

26 Below, we will present some case groups recognized in doctrine and case law that constitute conduct contrary to good faith in court proceedings. In light of the above, these are to be classified according to whether the relationship between the parties, the relationship between the parties and the court, or the relationship with another party to the proceedings is at issue, and whether the requirement to act in good faith or the prohibition of abuse of rights applies. This presentation is not exhaustive. Rather, the recognized case groups can serve to clarify Art. 52 para. 1 CPC in other constellations, namely those involving addressees of norms who are outside the procedural legal relationship. In this last case, however, it has been rightly pointed out that the duties of conduct applicable to these persons are likely to be regulated elsewhere by law.

2. The relationship between the parties

a. Duty to act in good faith

27 It follows from Art. 52 para. 1 CPC that (unilateral and multilateral) procedural acts must be interpreted in good faith. Accordingly, the subjective intention of the party is not decisive for the understanding of a procedural act, but rather how it could objectively be understood taking into account all circumstances. Obvious errors such as the incorrect designation of a legal remedy or the opposing party, calculation errors or an erroneous or unfortunate choice of words are not detrimental. In particular, if a request is unclear or incomplete, the court may be required under Art. 56 CPC to give a party the opportunity to clarify its submission by asking appropriate questions. An inadmissible or invalid procedural act must also be reinterpreted as a valid procedural act serving the same purpose if the former contains all the elements of the latter and the intention of the party to perform the other procedural act in the event of an error in the first is apparent. Furthermore, consideration may be given to whether a submission has been made by a lay person. In particular, a party with no legal knowledge cannot be expected to use legal terms at all or in the sense customary in professional circles. Procedural requests must not be interpreted literally without considering the meaning to be attributed to them. They must always be read in the light of the grounds given.

28 The parties have a duty of truthfulness in good faith insofar as they may not deliberately make untrue factual assertions or knowingly dispute true facts. A deliberately untrue assertion or dispute shall not be taken into account in the proceedings, and even a truthful statement made by both parties shall not be binding on the court. However, this does not mean that only those assertions are admissible which the party knows to be true and that only what is known to be untrue may be disputed. Rather, mere conjectures are admissible provided that they are not made entirely without tangible evidence. Such conjectures may even be required in certain circumstances. It is permissible to assert a fact that is known to be untrue if it only has a negative effect on one's own position. There is no obligation to present facts that are unfavorable to one's own position or facts that contradict one's own presentation of the facts. The obligation of the party that has not provided evidence to substantiate the opposing party's assertions is then derived in part from the obligation to tell the truth. Insofar as a party is obliged to cooperate in the taking of evidence, is questioned by name in the context of a party examination or a statement of evidence, the duty to tell the truth already arises from Art. 160 para. 1 lit. a, Art. 191 para. 1 and Art. 192 para. 1 CPC.

29 Finally, the principle of good faith gives rise to the requirement of good faith in proceedings. Accordingly, if one party raises the other party's legitimate expectations, it must fulfill them. However, the expectations are only legitimate if the other party was not aware of the actual circumstances and could not have been aware of them even with the attention required in the specific case. For example, a party must be bound by its statements from which the other party may, in good faith, conclude that it has taken up residence. The commitment to the legal appearance created by the declarations is made without regard to any deviating internal intention of the party and with corresponding consequences for the local jurisdiction of the court. However, it must always be critically examined to what extent a corresponding trust is justified in the individual case in view of the special features of the (contentious) civil proceedings.

b. Prohibition of abuse of rights

30 The prohibition of abuse of rights contains a prohibition on the abusive creation or exploitation of procedural legal situations. If one party obtains an advantageous procedural position vis-à-vis the other party by abusive means, this is not recognized. For example, a party acts abusively if it first prevents the other party from providing evidence and then claims that the other party has failed to provide evidence. In this case, the party must be denied the right to present the factual assertion that was prevented from being proven as disputed.Furthermore, an action against several co-litigants is abusive if its sole purpose is to circumvent the ordinary place of jurisdiction of one of the co-litigants. The prohibition of abuse of rights may also be violated by asserting a divisible claim in several partial actions in order to avoid a certain type of procedure or jurisdiction.

31 There is no protection against the abuse of procedural powers. The legal consequences that would normally apply must be denied in the event of abusive conduct. The exercise of rights in a useless, vexatious, or inappropriate manner constitutes abuse. This includes, for example, the malicious or wanton filing of a futile lawsuit or the lodging of an appeal or legal remedy that does not pursue any legitimate interests but rather other purposes, such as delaying the proceedings or annoying the opposing party. On the other hand, it is not abusive to defend a decision of the lower court that was in your favor in appeal proceedings. It is vexatious to file a large number of submissions that are grossly disproportionate to the interests pursued.

32 Finally, abuse of rights can be based on contradictory behavior on the part of the parties. It is abusive to raise formal objections only when the outcome of the proceedings is unfavorable, even though they could have been raised earlier. New facts must also be brought into the proceedings as soon as possible and may not be withheld in order to be used later in the proceedings to seek the reversal of an unfavorable decision. A party must accept the accusation of abuse of rights if it accuses the court of inadmissibly rejecting evidence or failing to take evidence, even though it had previously agreed to the admission of the former or waived the latter in the course of the proceedings. A party acts inconsistently if its conduct is incompatible with its previous conduct in proceedings against the same opposing party and is aimed at obtaining an unjustified advantage. It is also inadmissible to take contradictory positions in the same proceedings. A request for super-provisional measures may be contrary to good faith if it is used to wait until a particular urgency arises. The prohibition of abuse of rights requires the parties to behave consistently during the proceedings. However, it must always be borne in mind that the parties are facing each other in a contentious civil proceeding, that they cannot therefore be expected to do more than comply with a certain standard of fairness, and that the prohibition of abuse of rights cannot override a prior statutory provision.

3. The relationship between the court and the parties

a. Duty to act in good faith

33 The court is bound to the truth; it must not lie to or deceive the parties to the proceedings by providing them with information that it knows to be false. The parties are generally protected against (erroneous) incorrect information, whereby reference can be made to the criteria developed in relation to Art. 9 FC. A party's reliance on information provided by the court on a specific issue arising in the course of proceedings is therefore worthy of protection if it could not readily recognize the inaccuracy of the information and if, relying on that information, it has made arrangements which it cannot reverse without disadvantage. The claim to protection of legitimate expectations does not apply if the legal order has changed between the time the information was provided and the realization of the facts, or if there are overriding interests in the correct application of the law. Legitimate expectations can only arise with regard to procedural issues, but not with regard to issues of substantive law, the validity of which is to be clarified by the proceedings. The parties cannot rely on the court to provide binding information other than through its judgment. Of course, the court can establish legitimate expectations not only through (incorrect) information, which does, however, constitute a significant group of cases, but also through its overall conduct. One example is a case in which a (procedural) order gives the parties the impression that the court will act in a certain way. This also takes account of the principle of trust in the relationship between the court and the parties.

34 A party may not suffer any disadvantage from a defect in the opening of proceedings or incorrect information on the right of appeal. The case group of incorrect information on the right of appeal has been expressly regulated by Art. 52 para. 2 CPC in the context of the recent revision of the Code of Civil Procedure. The aforementioned constellations are therefore discussed below in n. 52 ff. in the discussion of this provision.

35 The principle of good faith continues to have an effect on changes in case law: it does not preclude a change in practice based on objective reasons, and the principle applies that the new case law is immediately applicable, i.e., also to pending proceedings. However, if a change in practice affects the conditions for lodging an appeal, in particular time limits and formal requirements, and if its immediate application would be disadvantageous to the party concerned, it must in principle be announced in advance in accordance with good faith. In the proceedings that gave rise to the change in practice, the old practice therefore remains decisive.

36 Finally, the court also violates the principle of good faith if it does not issue its decision within a reasonable time frame given the nature of the matter and the circumstances of the individual case, thereby violating the prohibition of undue delay or the principle of expeditious proceedings. However, this primarily concerns the scope of application of Art. 6 no. 1 ECHR and Art. 29 para. 1 FC, which is why this issue will not be discussed further here.

b. Prohibition of abuse of rights

37 Although the court is required to apply the applicable procedural rules and formal requirements in order to ensure the orderly conduct of proceedings and thus a constitutional procedure, it must not do so with excessive strictness. The prohibition of excessive formalism constitutes the limit of the formal strictness to be enforced in proceedings. This not only applies to the normative content of the prohibition of denial of justice under Art. 6 no. 1 ECHR and Art. 29 para. 1 FC, but also has a close connection to the requirement to act in good faith. The court acts abusively if it falls into excessive formalism. This is the case if rigorous formal requirements are imposed on proceedings without the strictness being objectively justified, if the court applies formal requirements with excessive severity or imposes excessive requirements on legal documents, and if it unlawfully prevents the person seeking justice from pursuing legal remedies. This means that the court must, for example, interpret the requests made in the light of the grounds given in the legal document and, where applicable, the contested decision, or draw the parties' attention to deficiencies in legal documents and give them the opportunity to remedy them. An incorrectly addressed or insufficiently stamped submission is also sufficient for compliance with the deadline, provided that the party remedies the defect after it has been returned by the post office (after the deadline has expired).

38 Like the parties, the court also acts abusively if it behaves inconsistently. For example, a court commits an abuse of law if it sends a decision to an address that is no longer current and subsequently accuses the party of refusing to accept it, even though it has been informed of the party's new place of residence. Furthermore, the court can be accused of a breach of good faith if it notifies a party of a decision during their vacation, even though it had previously assured them that it would refrain from making any deliveries that would trigger a deadline during this period. The Federal Supreme Court classified as unusual, but not contrary to good faith, the fact that a court, after the opposing party had been given the opportunity to comment on the conditions for the proceedings, first set a deadline for a written response to a claim, but then withdrew this deadline a few days later and did not admit the claim.

39 Finally, the parties must not behave disloyally or abusively toward the court. Thus, a party requesting legal aid cannot, in principle, be held against it that it is responsible for its own indigence. However, if it has foregone income or disposed of certain assets specifically in view of the proceedings to be conducted, this conduct is not protected and the legal benefit may be denied.

4. Other parties involved

40 The duty to tell the truth applies not only to the parties and the court, but also to other parties involved in proceedings. This duty is often the subject of separate statutory provisions. In this regard, reference should be made in particular to Art. 171 para. 1 CPC for witnesses and Art. 184 para. 1 CPC for expert witnesses. Here too, however, it follows from the principle of good faith that untrue statements made in court proceedings must be disregarded.

IV. Legal consequences of violating the duty to act in good faith

A. General: Legal consequences in individual cases

41 The duty to act in good faith generally requires, as explained above, that legitimate expectations be fulfilled and that any legal effect be denied to conduct that is contrary to good faith. What this means in detail can only be determined by looking at the specific conduct in question. The legal consequences of violating the legal principle are therefore determined according to the case groups developed for its application. For details, reference can be made to the explanations provided in the discussion of each of these case groups.

B. (Civil) procedural sanctions

42 The court may take breach of good faith in the proceedings into account when allocating the costs of the proceedings. Such conduct may justify a departure from the general principles of allocation under Art. 107 para. 1 lit. f CPC. Furthermore, the court has the option of imposing unnecessary costs of the proceedings on the party that caused them under Art. 108 CPC. However, recourse to these provisions is only necessary where the breach of good faith does not in any case lead to the loss of the case, namely because no action or appeal is brought and the party acting in breach of good faith is therefore already liable for the costs under Art. 106 CPC. This applies, for example, in cases where the party that ultimately prevails can be accused of individual violations of the principle of good faith. In the event of malicious or frivolous litigation, the court costs may also be imposed on the party concerned in proceedings for which no fees are payable, in accordance with Art. 115 para. 1 CPC. According to Art. 119 para. 6 CPC, this also applies in particular to proceedings for legal aid. On the other hand, pursuant to Art. 107 para. 1 lit. b CPC, no costs shall be imposed on a party despite losing the case if it was prompted to bring the action in good faith. This is particularly the case if a submission is declared inadmissible due to a change in practice (which, as an exception, does not have to be announced in advance).

43 Access to the courts should not be granted for claims that are made in bad faith or frivolously, but should only be open for the pursuit of interests worthy of protection. There is therefore no entitlement to free legal aid for proceedings conducted in bad faith, and any legal benefit granted in such cases may be withdrawn (even retroactively).

44 In the event of malicious or frivolous litigation, which is also contrary to good faith, the court then has the option of imposing a fine on the party or its representative in accordance with Art. 128 para. 3 CPC. This is a disciplinary measure that can be taken in addition to imposing the costs of the proceedings.

C. Criminal sanctions

45 Conduct contrary to good faith may also be relevant under criminal law. Under Art. 306 para. 1 and Art. 307 para. 1 SCC, a party who makes a false statement of evidence after being warned by the court to tell the truth, as well as third parties indirectly involved in the proceedings (witnesses, experts, translators, interpreters) who make false statements, give false findings or expert opinions, or translate incorrectly, may be punished with imprisonment or a fine. interpreters) who make false statements on the matter, give a false finding or opinion, or translate incorrectly may be punished with imprisonment or a fine. A member of the court may be liable to prosecution for abuse of office under Art. 312 SCC. In individual cases, document forgery under Art. 251 SCC may also be considered. A deliberately false assertion by a party in the proceedings may then constitute procedural fraud under Art. 146 SCC. Litigation fraud is the fraudulent deception of the court by means of untrue factual assertions by the parties to the proceedings with the aim of obtaining a decision that is (materially unjustified) detrimental to the assets of a party to the proceedings or a third party. The criminal prosecution of a party is not precluded by the fact that an administrative fine has already been imposed on it under Art. 128 para. 3 CPC, which is not a criminal measure.

D. Damages

46 The filing of a lawsuit, the exercise of legal remedies or appeals, and the submission of procedural motions are generally lawful even if the action in question ultimately proves unsuccessful. Everyone is entitled to seek legal protection for alleged claims, provided they act in good faith. The opposing party must accept any disadvantages arising from this, subject to the consequences of compensation under Art. 106 ff. CPC. If, on the other hand, the state proceedings are abused or conducted in bad faith or maliciously, this may give rise to a claim for compensation under Art. 41 CO. This includes, in particular, the initiation of obviously futile legal proceedings, the bringing of a lawsuit without a legal interest in doing so, the vexatious conduct of proceedings solely for the purpose of harming the other party, or the initiation of proceedings contrary to a clear agreement or for the pursuit of third-party procedural objectives (e.g., delay).

V. Enforcement of norms

A. General consequences

1. Proceedings before the court of first instance

47 The court applies the law ex officio in accordance with Art. 57 CPC. Accordingly, it must take into account the principle of acting in good faith ex officio, provided that the necessary factual requirements are presented in the manner provided for in the Code of Civil Procedure and are established. No special objection is required. According to Art. 8 CC and Art. 55 para. 1 CPC, it is normally incumbent on the party asserting abusive conduct on the part of the other party to assert and prove the relevant facts. This applies in any case if the alleged breach of good faith results from an act of the opposing party that is not directly related to the proceedings, such as in the case of obstruction of evidence or abuse of procedural powers. If, on the other hand, the alleged breach of the principle of good faith is based on conduct of the opposing party in the proceedings that is directly apparent to the court, e.g., in the case of contradictory conduct, the relevant facts are to be assumed to be known to the court pursuant to Art. 151 CPC and need neither be asserted nor proven. The court is required to take the relevant facts into account ex officio. The same applies where the conduct of the court itself is in question or where the court is required to investigate the facts ex officio pursuant to Art. 296 para. 1 CPC.

2. Appeal proceedings

48 If, in the opinion of one of the parties, the court of first instance has incorrectly applied Art. 52 CPC or Art. 9 or 29 para. 1 FC, that party may challenge the corresponding decision by means of an appeal (Art. 308 ff. CPC) or a complaint (Art. 319 ff. CPC), provided that the requirements for bringing the respective legal remedy are met. However, an interest worthy of protection in the legal remedy under Art. 59 para. 2 lit. a CPC only exists if the error alleged against the court of first instance is likely to lead to the contested decision being amended or set aside. This must be demonstrated in the statement of grounds. In principle, i.e. at least in cases of doubt, it must therefore be demonstrated why the violation of the principle of good faith asserted in the appeal proceedings would have led to a different outcome of the proceedings.

49 A violation of Art. 52 CPC may be challenged before the Federal Supreme Court by means of a civil appeal under Art. 72 ff. BGG, and the violation of constitutional rights such as Art. 9 or 29 para. 1 FC can be asserted with this or, if it is not available in the individual case, with a subsidiary constitutional complaint under Art. 113 ff. BGG. However, it is not permissible to allege a violation of the civil procedure code if only the subsidiary constitutional complaint is available. Here too, it should be noted that there is no legitimate or legally protected interest in answering purely theoretical or abstract questions. In case of doubt, it must therefore also be demonstrated here to what extent the alleged breach of good faith is likely to affect the outcome of the proceedings. Here too, the legal remedy must continue to meet the general formal requirements and, in particular, must be sufficiently substantiated.

B. Further sanctions

50 As a rule, in its final decision (Art. 104 para. 1 CPC), the court shall determine the court costs ex officio in accordance with the relevant cantonal tariffs (Art. 96 CPC) and applying the principles set out above (Art. 105 para. 1 CPC). It shall only award compensation to the parties upon request, which need not be quantified (Art. 105 para. 2 CPC). If the court allocates the costs of the proceedings in accordance with the usual principles, i.e. in particular in accordance with the principle of the prevailing and losing party pursuant to Art. 106 para. 1 CPC, it is not necessary to hear the parties on the question of costs according to case law. If the court wishes to deviate from these principles because one of the parties has acted in bad faith, it must therefore grant that party a legal hearing. The decision on costs may be challenged together with the main issue and is subject to the same legal remedies as the latter. Pursuant to Art. 110 CPC, the decision on costs is independently appealable. The decision on costs may also be challenged together with the main issue before the Federal Supreme Court. If only the costs of the cantonal proceedings are disputed, a distinction must be made: if the higher cantonal court also ruled on the merits of the case, only a minor point of this decision is challenged with regard to the costs before the Federal Supreme Court. The legal remedy is governed by that of the main issue and the legal remedy available there is available. If, on the other hand, only the costs were disputed in the cantonal appeal or complaint proceedings, this is the only decisive factor and, depending on the value in dispute and whether a legal issue of fundamental importance arises, an appeal in civil matters or a subsidiary constitutional complaint is available. The value in dispute is determined in accordance with Art. 51 para. 1 lit. a BGG based on the costs disputed in the cantonal proceedings.

51 The court imposes administrative fines pursuant to Art. 128 para. 3 CPC as part of its conduct of the proceedings (Art. 124 para. 1 CPC) in disciplinary proceedings. It decides ex officio whether to impose an administrative fine in a specific case. The opposing party in the civil proceedings is not directly involved in the disciplinary proceedings and has no right to make submissions in these proceedings. The right of the person concerned to be heard must be upheld. The imposition of an administrative fine may be challenged in accordance with Art. 128 para. 4 CPC by means of an appeal under Art. 319 ff. CPC and, depending on the case, by means of an appeal in civil matters or a subsidiary constitutional complaint. It should only be mentioned in passing that criminal sanctions must be imposed in the relevant criminal proceedings and that damages must be claimed in civil proceedings.

VI. Defects in the opening of proceedings and incorrect information on legal remedies (Art. 52 para. 2 CPC)

52 As explained above, it follows from the principle of good faith that a party may not suffer any disadvantage as a result of a defect in the opening of proceedings and, in particular, incorrect information on legal remedies. In the event of incorrect information on legal remedies, the appellate court is therefore bound by the trust that the lower court has created in the party through the incorrect information. According to the case law applicable until the revision of the Code of Civil Procedure on March 17, 2023, the party whose representative was not aware of the defect and could not have been expected to be aware of it even with due care enjoyed protection of legitimate expectations. The degree of attention that had to be exercised was determined by the circumstances of the individual case. A party who was already aware of the defect when consulting the relevant procedural provisions could not rely on incorrect information on the right of appeal. However, it was not necessary to consult the relevant case law and literature in addition to the text of the law. A party not represented by a lawyer could only be expected to consult the law if it had sufficient knowledge to find the relevant provisions and, if necessary, interpret them. Lawyers had more to do and were required to at least roughly check the information on legal remedies. Depending on the circumstances, the party's legitimate expectations could be met by extending the time limit for appeal or by referring the matter to the competent authority. However, incorrect information on legal remedies did not create a legal remedy not provided for by law. According to the same principles, a party acting with due care could not be disadvantaged by further procedural defects, such as the delivery of an order to a third party who was not entitled to receive it. However, both procedural defects and incorrect information on legal remedies only had an effect if the party was actually misled and disadvantaged. If, despite the defective service, the party was able to take note of the order or lodge an appeal in good time, it could not invoke the procedural error.

53 The Federal Assembly considered this case law on incorrect information on legal remedies to be too strict or even excessively formalistic, which is why, with the revision of the Civil Procedure Code of March 17, 2023 (in force since January 1, 2025), it incorporated a statutory provision in Art. 52 para. 2 CPC. The wording of the provision included in the law (“Incorrect information on legal remedies is effective before all courts to the extent that it is to the advantage of the party invoking it”) is, of course, very broad and its application raises various questions. Chevalier/Boog point out, for example, that an appeal instruction may refer to a legal remedy not provided for by law or contain incorrect information regarding the suspensive effect of the legal remedy. In practice, solutions will have to be found here, whereby an application of the provision that restricts its broad wording would appear to be appropriate. Reference can be made to the following in this regard:

54 During parliamentary deliberations, it was pointed out on several occasions that the application of procedural provisions is a matter for the court and that the parties may rely on corresponding information regardless of whether they are represented by a lawyer or not. Thus, due to the previous case law, which was considered too strict, the party should not bear the risk of a decision not to hear the case if the higher court interprets a time limit differently from the lower court. Apart from the question of the extent to which it serves the interests of laypersons to allow (professional) legal representatives to benefit from the new provision, it appears that the legislature's primary intention in revising the law was to correct previous case law in the sense that a party (or its representative) cannot be expected to exercise an excessive degree of care when dealing with incorrect information on legal remedies. The new regulation is therefore unlikely to represent a complete departure from the principles that have applied to date. For example, it will still not be possible for a court to create a legal remedy unknown to the Code of Civil Procedure by providing incorrect information. Furthermore, Art. 52 para. 2 CPC will only apply to information provided by the court that is an essential part of the information on legal remedies, such as the name of the competent court of appeal or the time limit for lodging an appeal. This must apply all the more so as, in civil proceedings, an advantage granted to one party in good faith often has a negative impact on the other party. However, parliamentarians were also aware of this problem. As regards the care to be exercised in dealing with incorrect information on legal remedies, even under the new rules, gross procedural negligence on the part of the party or its representative will not be protected by law. Parliament emphasized that no one should be able to rely on obviously absurd (“complètement loufoque”) information on legal remedies that provides for a time limit of 3,000 days. Nor is the new provision intended to allow “de faire tout et n'importe quoi ou de récompenser les mauvais avocats” (doing anything and everything or rewarding bad lawyers). Any other solution would be difficult to reconcile with the fact that any legal provision must strive to ensure consistency in the existing system of values. This consistency would not be guaranteed if Art. 52 para. 2 CPC allowed a party, in the event of incorrect information on the right of appeal, to behave in a manner that could itself be classified as contrary to good faith or abusive and would thus contradict the principle enshrined in Art. 52 para. 1 CPC. Furthermore, it must still be required that the incorrect information on the right of appeal has actually had an effect. Where this is not the case, i.e. where an appeal was lodged in time despite incorrect information, there is no need to protect the party concerned. Finally, information on the right of appeal has no effect where it deviates from the provisions of the Code of Civil Procedure to the detriment of the party.

55 According to its wording, Art. 52 para. 2 CPC only concerns cases of incorrect information on legal remedies. However, the provision is likely to also apply to the more general case of procedural defects, which is largely governed by the same principles, and therefore there is no justification for treating them differently.

56 Art. 407f CPC does not mention Art. 52 para. 2 CPC as one of the provisions that are (directly) applicable to proceedings already pending when the revision of the Civil Procedure Code of March 17, 2023, enters into force. This means that, with regard to this provision, the general principle remains that proceedings which were already pending on January 1, 2025, will be concluded before the court concerned in accordance with the previous law.

(May 2025)

About the author

Dr. iur., attorney-at-law, law clerk at the Second Civil Division of the Federal Supreme Court. This commentary reflects solely the opinion of the author. The author would like to thank attorney-at-law Dr. iur. Marco Levante and attorney-at-law Matthias Gross, LL.M., for their critical review of the commentary and for their valuable comments and suggestions.

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