The CDCB entered into force on January 1, 1892. The validity of this venerable code has since then not diminished. On the contrary, it became more and more important in practice, especially during the last years, when there was a record number of bankruptcy cases. In the year 1990, 1.4 million payment orders were issued in Switzerland. The loss which the creditors have suffered by bankruptcy - in the same year - amounted to CHF 1.4 billion.
Considering the growing importance of the CDBC, it is remarkable that the CDCB until now has never been revised, with the exception that after the Second World War the provisions on the composition arrangement (with assignment) similar to the provisions on the banking composition arrangement were incorporated into the code. Furthermore, individual amendments were made from time to time.
However, there were more and more claims for a general revision of the code. Thus, in the mid-seventies the revision began and was worked on by a study commission, an expert commission, the Federal Administration, the Federal Council and the Parliament. Finally, the revision was completed and entered into force on January 1, 1997.
The revision of the CDCB is a general revision in the sense that all articles have been examined and many of them modified. Because there were no specific postulates for the reform, the system or the previous code was basically retained. In order to keep a certain conformity with the previous code, the order of the articles was, in general,, not changed. For these reasons it would be appropriate to describe the revision as a "general partial revision".
The revision, in particular, is characterized by the following changes:
- substitution of materially unsatisfactory regulations (example: tightening of the order of privileges in bankruptcy, article 219 CDCB);
- adjustment of grammatically unclear or antiquated regulations, in particular with regard to the French and/or Italian text (example: article 13 CDCB);
- more systematic and detailed regulations (example: opposition procedure, article 106 et seq. CDCB);
- codification of the court practice of the Swiss Federal Court which has been developed in the course of this century (example: observance, extension and restitution of time-limits, article 32 et seq. CDCB);
- inclusion of certain provisions in the CDCB which were previously contained in ordinances by reason of their importance (example: subsequent interruption of the debt collection in case of a change of creditors, article 77 CDCB);
- insertion of captions to all the articles - helpful guidelines in the "jungle" of enforcement provisions.
However, the following provisions, in particular, were maintained:
- the debt collection by way of seizure in case of natural persons ("naturliche Personen") and the debt collection by way of bankruptcy in case of corporations and legal entities (article 39 CDCB);
- the beginning of the debt collection with the delivery of the payment order without any preliminary examination procedure, solely based on a request for debt collection by a "creditor" (being the best known peculiarity of the Swiss Debt Collection and Bankruptcy Law);
- the continuation of the debt collection based on a judgment or a judgment substitute (article 80 et seq. CDCB), or a public deed of indebtedness or a signed acknowledgment of debt, respectively (article 82 CDCB);
- the combining of creditors into one seizure group ("Pfandungsgruppe") provided that they join the seizure within 30 or 40 days (article 110 et seq. CDCB).
The revision does not cover the questions raised by the Federal Act on Private International Law of December 18, 1987 and the Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of September 16, 1988 (Lugano Convention [LugC]; SR 0.275.11; for Switzerland in force since January 1, 1992). Thus, these questions remain to be answered by the doctrine and the court practice.
The revision has adapted the CDCB in numerous ways to the needs of practice. The system of the previous code, which has been proven good in practice, in principle, was not questioned, but the code was given a new form. The conformity with the previous doctrine and the court practice could be preserved. However, it remains to be seen whether the code, by this revision, was sufficiently modernized and whether the system of debt collection and bankruptcy which was conceptionally invented in the 19th century will meet the needs of the 21st century.
Nevertheless the revision is certainly useful and also a progress. The insertion of the captions simplifies the search for the articles, and the grammatical revision improves the legibility. However, the general revision of the CDCB has not changed its main goal: to guarantee a fair balance between the interests of the creditors and the interests of the debtors.
For the creditors, in particular, the following points are favourable:
- introduction of a (primary) state liability;
- improvement of the right to inspection;
- a shortening of the "closing hours" and a tightening of the period during which no executions or foreclosures are allowed;
- extension of the time limit for the filing of a suit and an extension of the statutory periods of limitation;
- a unification of the jurisdictions and an insertion of a new jurisdiction for recissory actions against defendants with residence abroad;
- a reform of the provisions on immunity from attachability (or an extension of the attachability, respectively);
- a (formally) more difficult declaration of insolvency pursuant to art. 191 CDCB;
- added difficulty regarding the debitor's opposition in debt collection proceedings based on a bankruptcy loss certificate;
- emphasis on the principle of equality of creditors in bankruptcy by way of tightening the order of privileges;
- revival of debt collection proceedings after suspension of bankruptcy;
- a new proceeding for the ascertainment of new assets;
- extension of the statutory time limit for avoidance and extension of the periods of limitation regarding rescissory actions.
For the debtors, in particular, the following points are favourable:
- declaratory action of the debtor in order to establish the non-existence, redemption, waiver or granting of delay, with the possibility of direct intervention into the pending proceedings by an ordinary judge;
- extension of the time period for partial payments;
- exclusion of alimony and family allowances from bankruptcy proceedings;
- time limitation of claims based on loss certificates and the possibility of cancellation of loss certificates;
- rendering it more difficult to receive a charching order;
- standardized opposition proceeding against an arrest order.
The previous code was often reproached to be too debtor friendly; the revision has not changed much in this regard. For a creditor who has a legitimate claim against a debtor, but who has no deed to prove his claim, the situation remains unsatisfactory in the event the debtor declares opposition to such claim. In such case the creditor cannot, during the period of a possibly lengthy court proceeding, hinder other creditors from seizing the goods of the debtor. The possibility of a prompt intervention by the creditor against a debtor who behaves in a dilatory way is still very limited.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.