Insolvency law of Switzerland

The Swiss Debt Enforcement and Bankruptcy Law is part of the foreclosure law. Since self-help is prohibited a creditor principle, the Federal Act on Debt Enforcement and Bankruptcy ( Bankruptcy Law ) governs the procedure for the enforcement of claims in the form of money or money's worth secured by means of state violence. The claiming a debt is called in Switzerland debt.

History

The Federal Act on Debt Enforcement and Bankruptcy occurred on 1 January 1892 in force and has since been revised several times. It is the oldest part of the codified on Swiss (federal) level civil law and is older than the Civil Code and the Code of Obligations, which explains certain peculiarities.

Changes from 2014

1 January 2014, replaced by a revised reorganization law in force.

The following changes have been made in the Federal Act on Debt Enforcement and Bankruptcy ( Bankruptcy Law ):

• The moratorium should continue no longer necessarily end up in a debt restructuring agreement or bankruptcy, but can be propagated also granted to pure deferral purposes.
• The approval of the restructuring agreement no longer depends on the assumption that the satisfaction of the third-class claims is ensured. Shareholders must also continue to make an ordinary composition agreement an appropriate own contribution to the restructuring, so that a certain equality with creditors is reached.
• In continuing obligations ( eg rent or lease contracts) in bankruptcy, a differentiation is made whether a case exists liquidation ( bankruptcy or debt restructuring agreement with assignment of assets ) or a moratorium for the purpose of rehabilitation and subsequent continuation of the company. In the event of liquidation, it is assumed that the long-term debt ratio is resolved properly, unless the receivership does not want to continue the contract and does not enter into it. In the bankruptcy proceedings for the purpose of rehabilitation, however, the debtor may terminate a continuing obligation extraordinarily with the consent of the administrator, provided that the counterparty is, however, fully to indemnify.
• The rights of creditors during the bankruptcy proceedings are specifically strengthened to protect against premature liquidation actions. Under certain circumstances, the probate court may appoint a representative creditors' committee, which oversees the trustee.
• If, within the context of insolvency proceedings, the takeover of a company, there's no obligation to take all previous contracts. Whether and to what extent the work contracts will be taken to the operation, to be negotiated on an individual basis between the parties. To compensate for this, there is a new general social plan obligation in cases of dismissal, unless a restructuring agreement is completed. This obligation applies only to companies with more than 250 employees who want to lay off more than 30 employees.
• The introduced with the new VAT Act on 1 January 2010 privilege for claims arising from the VAT in the second creditor class is canceled. This privilege has hampered many renovations so far.
• The action for rescission of transactions that have been completed to the detriment of one or more creditors, will be facilitated if the shift of assets shall be made to a related person. This holds true also for shifts within a group.

Survey

Basically, there are three insolvency proceedings: bankruptcy, probate proceedings and bankruptcy delay. The bankruptcy is usually performed by competent bankruptcy office and leads to the liquidation of the debtor. A probate proceedings is - in principle - a restructuring process which proceeds in two phases: a deferral, are recorded during the assets and liabilities ( creditors ) and a remediation plan will be developed, and an implementation phase in which the creditors, in their order of preference dividend mortgage payments or liquidation proceeds are satisfied. With the postponement of bankruptcy is ultimately still a remediation method available, obtained with the principle be restructured debtors under the supervision of the court and a custodian deferral to develop a remediation.

The classification of approved creditors takes place in the collocation. In the collocation plan, which is usually created by the bankruptcy office, only those creditors are generally included, who have filed their claims. A collocation is carried out without signing up for:

• Registered in the land registry rights (Art. 226 DCBA )
• Servitutes apparent
• Direct statutory lien rights / restrictions

In bankruptcy even those claims can be entered, for which a bankruptcy debt under Article 43 SchKG is excluded.

Collocation is provided later in order to be able to share in the proceeds of sale of the bankrupt estate ( dividend).

Most regulations on debt collection and bankruptcy law can be found in the Federal Act on Debt Enforcement and Bankruptcy ( Bankruptcy Law ). In addition, the cantonal legislation and international law also have a certain significance.

So in Switzerland to enforce a ( monetary ) demand power state coercion principle is also possible without substantive judicial assessment of the claim, which is a special feature. However, demand a court judgment within 10 days after receipt of the debt of the debtor, the appropriate remedy is called legislative proposal. This interrupts the progress of the debt, was until a decision on the claim legally by a court. If the demand legally recognized or collected no right proposal, the Betreibungsverfahrungen takes his progress. The debt is enforced in extremis either by attachment or by bankruptcy, the creditor has no choice; it is regulated by law exactly which methods are being utilized is ( in simple terms is recognized for bankruptcy if it is a public listed company in the driven ones, and seizure in other cases, particularly in cases against individuals). Ends bankruptcy or garnishment, without the creditor's claim (in full) can be satisfied, the creditor will receive a certificate of loss; in the case of new assets of the debtor, he can open up a new procedure within 20 years. In addition, the debtor may, of course, satisfy the creditor during the procedure at any time and thereby terminate the proceedings; it is important to note that can be made ​​valid only to the enforcement office from debt, and that plus incurred in order to demand total fees and interest.

In addition to the DCBA form, inter alia, numerous side decrees (especially the VZG ) legal sources of debt collection and bankruptcy law.

The Bankruptcy Law regulates in his eleventh title also part of the restructuring law ( debt restructuring, debt restructuring agreement, after debt consolidation ).

The SchKG sees as the competent bodies in particular the following steps:

• Betreibungsamt
• Courts
• Cantonal Deposit Institution ( mostly cantonal )
• Bankruptcy Office
• Authority
• Probate
• Police
• Solicitors