Debt collection/enforcement In Switzerland

1. the demand for payment with the possibility of the debtor to block the debt collection with an objection (called "Rechtsvorschlag")

2. und dem Pfändungsverfahren an sich. 

The enforcement itself, called debt collection in Switzerland, is governed by the provisions of the Federal Debt Collection and Bankruptcy Act (SchKG).

To initiate a debt collection at the debtor's place of residence or business, the claims shown in the title, converted into Swiss francs, are to be submitted with the corresponding form "Betreibungsbegehren". It should be noted that in Switzerland there is no interest on arrears linked to the base interest rate; the debt collection officials in Switzerland do not calculate this German titling; creativity is required here in order not to waive interest claims.

The debtor is then immediately served with a so-called payment order, to which he can react in different ways. Either the debtor pays, or he files an objection (legal proposal) to defend himself against the claim, or he does not react at all. After a legal proposal, the debt collection cannot be continued for the time being; the disputed claim must be reviewed by the court (see below on the legal opening procedure).

If the debtor does not respond, the next step is to file a request for continuation in order to have the debt collected by the debt collection office. The SchKG provides two different procedures for this, depending on whether the debtor is a natural person (then seizure) or whether it is a company / natural person entered in the commercial register (then bankruptcy collection).

In the "debt collection for garnishment", the debt collection office, after determining the debtor's income and expenses, executes the garnishment of the initially calculated quota every month for one year, unless the claim has been collected in a shorter period of time. At the end of the garnishment year, a so-called certificate of loss is issued for any outstanding debt, which certifies the remaining debt, but stops the accrual of interest. From the certificate of loss, a new request for continuation can be made immediately within 6 months.

In the "debt collection for bankruptcy", the debtor company is given a final payment deadline of 20 days (bankruptcy threat) before the creditor is given the opportunity to apply to the competent court for the opening of bankruptcy proceedings against the company. In these proceedings, the creditor has to make a deposit, the amount of which is determined by the court, usually around CHF 2,000. Unused funds are returned to the creditor. After the approval of the bankruptcy, the bankruptcy office is from then on responsible for the execution.

If the debtor has made a legal proposal against the debt collection, the alleged claim must now be enforced in court. However, if a German final judgment already exists, a much shorter and less expensive court procedure, the Rechtsöffnungsverfahren, comes into play. In this procedure, if the prerequisites are met, the foreign judgment is first recognized in Switzerland on a preliminary basis and declared enforceable (exequatur). The legal basis for this is the so-called Lugano Convention (Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters), whereby there is an old Lugano Convention of 1988 and a revised Lugano Convention of 2007. This international treaty stipulates that judgments issued in Germany are generally recognized in Switzerland without renewed legal examination. The term "decision" also includes all decisions in interim proceedings, enforcement orders and cost assessment orders. Depending on when the decision was issued and when the respective LugÜ was implemented in the member states, different documents must be provided to the Swiss court. Particularities exist especially in proceedings in which the former defendant or respondent has not been present. Proof of service of the document instituting the proceedings in the manner required by the Lugano Convention must be submitted in the opening proceedings. Particularly in the case of enforcement notices, it is not possible to determine whether the order for payment was served on the defendant in Germany at the correct place of residence. The postal employee serving the order for payment only checks the name on the mailbox, but this does not provide any information on the debtor's actual place of residence. Only information from the population register provides certainty here.

If the exequatur is granted, the German decision is considered as documentary evidence of the legitimacy of the claim. The debtor can now essentially only object to payment, deferral or statute of limitations, otherwise the court cancels the legal proposal and the official debt collection proceedings (enforcement Switzerland) can be continued.

Die Schweizer Betreibungsämter nehmen keine Zustellung per Post und auch keine Auszahlungen nach Deutschland vor. Das macht die Betreibung (Zwangsvollstreckung Schweiz) für einen deutschen Gläubiger, der kein Domizil in der Schweiz hat, schwer bis unmöglich. Er kann aber einen Schweizer Anwalt einschalten, der die Betreibung vornimmt.

Die damit verbundenen, zusätzlichen, anwaltlichen Kosten für die Betreibung (Vollstreckung Schweiz) dürfen dem Schuldner gemäß SchKG nicht auferlegt werden. Das ist im deutschen Recht anders geregelt. Hier können die Vollstreckungskosten gegenüber dem säumigen Schuldner geltend gemacht werden, notfalls im Rahmen eines Schadensersatzes. Diese unterschiedlichen Rechtslagen lassen einen Spielraum zu, den Schuldner auch zur Übernahme der Anwaltskosten für die Betreibung zu bewegen.

An upstream option for checking the debtor's creditworthiness is to request an extract from the debt collection register. This list shows the debtor's payment history and liabilities.