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What to do
when getting prosecuted in Switzerland ? |
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| Everyone
of us forgets to pay bills on time once in a while. It can
happen, but it shouldn`t, - especially not in Switzerland. |
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| At a
default of payment you normally first receive one or two dunning
letters. However, in an extreme case a late payment can result
directly in a prosecution. Since such a prosecution can be very
painful, the following article will show you the consequences if
getting prosecuted and advice you how to deal with a
registration in a prosecution index. |
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| Basically
in Switzerland everbody, each individual and incorporation can
get prosecuted. The meaning of this sentence is more remarkable
than it seems, since the word "everybody" means that not just a
debitor can be target of a prosecution. Actually it`s possible
to get prosecuted even without any existing debt, yes, even
without any legal or factual relationship to the person which
starts the prosecution. |
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Why
so ? |
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| The federal
swiss act of prosecution (Schuldbetreibungs- und Konkursrecht) doesn`t require a proof of an
existing debt when launching a prosecution. Since the demand of
prosecution isn`t a action which is first discussed by a court,
it`s very simple to start one. By the time starting it, you
don`t have to prove the debt, what means that in Switzerland
anybody could launch a prosecution against anybody. The only
thing the – potential – debitor has to do is to fill out a
prosecution application form and to pay a bailment. We will
later in this expertise see that the easy it is for the debitor
to launch the prosecution, the harder it is for the prosecuted
person to get its name out of the prosecution index. Especially
for a person which faces an absolute unjustified prosecution
this – weird – system can have grave consequences. |
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If a
prosecution was launched against you once – justified or not –
your name will be registered at the local prosecution register
for at least the next three, eventually five years. After this
time your name will be erased from the list. You might ask
yourself now what the consequences can be if getting listed on
this index. Well, everyone who ever tried to lease a car, take
up a loan or rent an appartement in Switzerland knows that the
first document they ask for is the abridgement of the
prosecution index
(Betreibungsregisterauszug).
If you don`t have a "white sheet" then, the chance of getting a
negative answer on your request is close to a 100 %. |
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| Switzerland
knows three types of prosecution: |
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| The
prosecution on execution, the prosecution on execution of the
pledge and the prosecution on insolvency. |
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| If an
individual is not registered in the trade register, it normally
faces the prosecution on execution. This type of prosecution
starts when the debitor fills out the application form at the
local prosecution office. From that day forth the state takes
over the prosecution process. You as a debtor will now receive
the so called payment summons (Zahlungsbefehl)
from the local prosecution officer. Normally the swiss mail
takes over this job. When receiving the payment summons you have
ten days of time to either pay the debt or to object. Your
behaviour within this ten days is of enormous importance for the
future proceeding. If you simply pay the debt you might get rid
of the prosecution officers, but for the next three years you
will still be registered in the prosecution index. |
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| If you object –
what you can already do when the postman hands out the
payment summon to you – the whole prosecution will be
stopped for a certain while and you will win time to react. |
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| An
objection causes now a burden of proof to the debitor
which now for the first time has to show that his prosecution is
justified. If he now can`t proof your debt, the prosecution will
either be discontinued after one year or, if the evidences
aren`t sufficient, he has to choose the long-lasting way of a
civil process. Depending on the complexity of the case, a trial
could last for years. |
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| However,
even the discontinuation takes place you will still remain
registered. |
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| Generally
our advice is the following: |
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| After
receiving the payment summon you immediately object, - if the
prosecution is justified. The objection will give you time to
react. Get in contact with the debitor and propose the following
proceeding: In case he abandons the prosecution at the
prosecution office, you agree to make an additional extra
payment. Most debitors agree thus they get more than they
deserve. Swisscom for instance, the largest provider of telecom
services in Switzerland, demands a hundred francs for a
discontinuation notice to the prosecution office. By doing so
you have to make sure that the note will contain the sentence "Discontinuation
by the debitor" ("Rückzug
durch den Gläubiger"),
otherwise you still will appear registered. |
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Now why is it so
important not to be registered in the prosecution index ? As
mentioned, in Switzerland, if you for instance want to rent
an appartement, they ask for an abridgement of the
prosecution index. If there appears a note that you`ve been
facing a prosecution in the last three years your chances to
get the appartement are close to zero. |
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| However, there are
two very negative points in the swiss prosecution system: |
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