At present, each of Switzerland's cantons has its own laws on civil procedure. This makes it both onerous and expensive to take legal action. By harmonizing the different laws in this field, the Federal Council aims to put an end to this fragmentation and the associated legal uncertainty. The Federal Code of Civil Procedure draws on the traditions of civil procedure that have developed organically at cantonal level. It is a practicable, modern and efficient piece of legislation.
The future Code of Civil Procedure provides for a variety of types of legal action, each geared to the nature of the parties and the dispute concerned. For example, a simplified procedure applies to minor cases, as well as to matters concerning civil law in the social sphere (e.g. landlord/tenant disputes, labour disputes and consumer protection). This is characterized by less formality, a greater emphasis on verbal submissions and a more active role for the courts.
Great importance is attached to settling disputes out of court. The parties must first make an attempt at conciliation or go through a mediation process before they can take their case to court proper. This preliminary stage not only helps to relieve the burden on the courts, but also makes it easier for the parties to take the first step, because the threshold is lower. Just as in the past, the cantons concerned can use their tried-and-tested, accessible system of justices of the peace as the conciliation authority.
Each action takes the form of irresolvable conflicts of interest: The complainant is seeking fast, cost-effective and lasting legal protection, while the respondent is looking for a broad range of defence options. Losing parties want an effective appeals process, and winning parties press for the judgment to be enforced immediately. The draft law takes a pragmatic middle way through this potential minefield. For example, there is a good balance of provisions on the parties' ability to present new prosecution or defence evidence. The draft also includes accelerated proceedings where both parties are solvent, as well as the option of provisional enforcement despite a pending appeal.
The new law must not result in any additional costs for the cantons and it must not set up any new courts. Specialist courts in particular – such as commercial courts, rent tribunals and labour tribunals – remain organizational options to be invoked at the parties' discretion. The cantons will also remain responsible for the costs (court and solicitors' costs) which are charged.
Civil procedure legislation is undergoing major change. The draft legislation therefore provides for pilot projects at cantonal level so that, for example, alternative forms of legal action can be tested. Existing cantonal practice will form a key component of the further development of laws on civil procedure.
The legal reforms adopted by the people and the states of Switzerland in 2000 provide the constitutional basis for a far-reaching overhaul of the Swiss justice system. The first stage of these judicial reforms – the complete revision of the administration of justice at federal level – will be completed with the entry into force of the Federal Supreme Court Act (Bundesgerichtsgesetz) and the Administrative Court Act (Verwaltungsgerichtsgesetz) on 1 January 2007. The creation of national codes of criminal and civil procedure will form the second and third phases of reform respectively. The Federal Council issued an opinion on the harmonization of laws of criminal procedure last December. Parliamentary consultations on the two drafts are expected to last for around two years.
For the complete documentation see the pages in German, French or Italian.
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Last modification 31.03.2010