The new law on prosecutions
The new law on prosecutions
I've heard that the law on debt collection has changed and that a debtor who has been wrongfully prosecuted is better protected than before... What does this mean?
Christelle, Vaud
In Switzerland, it is possible to try to claim a sum of money from a third party by serving a summons to pay without first having to prove that the claim actually exists. The debtor must then simply lodge an opposition to the proceedings in order to prevent them from going ahead. A creditor who receives an opposition to a summons to pay will have to apply to the court for the opposition to be lifted or for payment if he wishes to recover the money he believes he is owed.
Insofar as it is not up to the debt collection office to verify the existence of the claim, the debt collection action will remain in its registers, even if the debtor lodges a valid objection. This means that even a completely unjustified debt collection action can have serious consequences for the debtor.
In practice, article 8a of the Debt Collection and Bankruptcy Act (LP) has long provided that the debt collection office must not inform third parties of debt collection proceedings that are null and void or cancelled on complaint or following a judgment, debt collection proceedings for which the debtor has won the action for recovery of undue payments and withdrawn debt collection proceedings. However, this implies that the debtor must take action at his own expense to counter the said claims.
Since 1 January 2019, the LP has been supplemented to the effect that the debt collection office must also not communicate debt collection proceedings for which a request to this effect is made by the debtor after the expiry of a period of three months from the notification of the payment order, unless the creditor proves that proceedings to cancel the opposition were initiated in time.
This provision therefore enables a debtor who has been unjustly pursued to have the debt collection withdrawn from the extract communicated to third parties if the creditor does not initiate legal proceedings to have his objection withdrawn within three months of notification of the payment order. This means that debtors who have been unjustly pursued now have a new, less costly way of getting rid of the harmful effects of an illegitimate entry against them in the debt-collection office's registers.
