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    10392
  • II.Principles

    Civil procedure in Switzerland is constrained by a set of principles outlined by the Civil Procedure Code. For example, all those who participate in proceedings must act in good faith (Article 52). Further, the parties’ right to be heard must be respected (Article 53). Court hearings are public and judgements must both be pronounced publicly and made accessible to the public (Article 54 I). The court applies the law ex-officio (Article 57). In the following paragraphs, four other fundamental principles will be examined.

    1.THE PRINCIPLE OF PARTY DISPOSITION AS A RULE

    In Swiss civil procedure, the parties largely have the power to decide the time, subject matter, and duration of proceedings: this is what is known as the principle of party disposition. In this regard, the only principle that the Civil Procedure Code explicitly mentions is that of non ultra petitia. It states that the court may not award a party anything more than or different from that requested (Article 58 I). Nonetheless, the principle of party disposition is recognised as being generally applicable to Swiss civil procedure, including matters like the initiation and closing of proceedings. The courts do not open proceedings on their own initiative; instead, the claimant decides whether or not to file an action. The claimant also determines the subject of the proceedings through his or her claim, i.e. what he or she is demanding from whom. If a claim is divisible, an action for only part of the claim can be filed (Article 86). Because of the principle of non ultra petitia, the court is restricted to the claimant’s request. The principle of party disposition also means that the proceedings can be brought to an end by the parties at any point. Procedural institutions to end a proceeding are settlement or acceptance of the claim and withdrawal (Article 241). They have the same effect as a binding decision.

    The principle of party disposition is complemented by the court’s duty to enquire (Article 56). If a party’s submissions are unclear, contradictory, ambiguous, or manifestly incomplete, the court provides an opportunity for either party to clarify or complete the submission by asking appropriate questions. Shortly after the entry into force of the Civil Procedure Code, it was heavily disputed whether the court merely had a right to enquire or an actual obligation to do so. It is now recognised that the court is indeed obligated to ask questions.

    2.THE PRINCIPLE OF EX-OFFICIO ASSESSMENT AS AN EXCEPTION

    Another exception to the principle of party disposition in Swiss civil procedure is the principle of ex-officio assessment (Article 58 II). It means that the court has a duty to independently assess the case before it; it deprives the parties of their free disposal over the matter in dispute and means that the court is not bound by the parties’ requests. In Swiss civil procedure, the principle of ex-officio assessment is applied where the public interest requires that the parties are deprived of their free disposal. Such a reason may be, for instance, the protection of weaker parties (like minors). For example, the court can award more child maintenance than the amount requested by the claimant or than the amount the parties had agreed on in a divorce settlement.

    The claimant still has to file an action if ex-officio assessment is applicable. State authorities may only initiate civil proceedings if this is explicitly stated by federal law: for example, this is the case for the action for annulment of marriage (Article 106 Civil Code).26 Appellate proceedings can never be initiated ex-officio.

    3.THE PRINCIPLE OF PARTY REPRESENTATION AS A RULE

    While the principle of party disposition stipulates how the subject matter of proceedings is defined, the principle of party representation concerns the question of how the court comes to know the facts and evidence it needs for deciding the case. In Swiss civil procedure, this principle is the rule, meaning that only the facts and evidence produced by the parties form the subject matter of the proceedings. This means that the parties must present the court with the facts in support of their case and submit the related evidence (Article 55 I). This can contradict the search for the material truth. For example, if a party does not dispute or concedes allegations of its opponent, the judge has to base his or her decision on these facts, regardless of his conviction of the truth. However, this is justified by the principle of individual autonomy in civil procedure. Like according to the principle of party disposition explained above, the parties can decide whether they want to bring proceedings before a court; they also can decide which facts they present in their statements.

    The principle of party representation is limited in several ways: evidence is not required to be provided in support of publicly known facts, facts known to the court, and commonly accepted rules of experience. The latter can be based on general life experience (common sense) or on experiences from specific areas of life (trade and commerce, technology, art, etc.). An example would be the determination of the time spent on housekeeping based on statistical data. Facts can also be undisputed and therefore be considered proven. As with the principle of party disposition, the principle of party representation is also complemented by the court’s duty to enquire. Again, this means that the court asks questions for either party to clarify or complete their submissions if they are unclear or incomplete. If this duty to enquire is exercised extensively, the proceedings acquire a more inquisitorial touch, something which runs counter to the idea of the principle of party representation upon which it is the parties’ responsibility to present the relevant facts to the court which does not establish facts of its own. Therefore, it is widely recognised that the duty to enquire shall be exercised with great restraint towards parties who are legally represented, at least in ordinary proceedings. For simplified proceedings, a comparably stronger duty to enquire is imposed by the Civil Procedure Code (Article 247).

    4.THE PRINCIPLE OF EX-OFFICIO INVESTIGATION AS AN EXCEPTION

    While the principle of ex-officio assessment means that courts are bound by the parties’ requests, the principle of ex-officio investigation concerns the establishment of the facts in a case. Within the scope of the principle of ex-officio investigation the courts cannot rely on the facts presented to them by the parties: they must inquire into the “material” truth ex officio, thus providing an exception to the principle of party representation. The principle of ex-officio investigation is highly relevant in criminal proceedings. It does not have the same significance in civil proceedings because civil courts cannot rely on the relevant investigation authorities. Distinction is to be made between the principle of limited ex-officio investigation (establish the facts) and the principle of unlimited ex-officio investigation (investigate the facts). Unlimited ex-officio investigation applies in proceedings concerning children in family matters. Limited ex-officio investigation applies in disputes concerning matters of discrimination under employment law and certain tenancy matters, as well as in tenancy, lease, and employment law disputes where the value in dispute does not exceed CHF 30’000. As with ex-officio assessment, the main reason behind ex-officio investigation is to protect the weaker party.

    Where ex-officio investigation is required, the court questions the parties extensively and demands that they produce relevant materials, for example by calling witnesses. Still, due to the court’s limited possibilities of investigation, it is up to the parties to describe the main facts, being prompted by the judge’s questions where necessary. Only where unlimited ex-officio investigation applies does the court have the responsibility for establishing the relevant facts.

    This means the involvement of the court in the establishment of the facts of a case can have the following manifestations in different proceedings:

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    Figure 3: Levels of Court Involvement in Establishing the Facts


    26Grounds for marriage annulment are for instance that one of the spouses was already married at the time of the wedding; that one of the spouses lacked capacity of judgement at the time of the wedding and has not regained such capacity since; that the marriage was prohibited due to kinship; that a spouse has not married of his or her own free will or that one of the spouses is a minor.