The law on prosecutions is set to change
The law on prosecutions is set to change
"I read your article of 11 April about the disputed prosecutions that appear on the extract from the register of prosecutions. I've heard that there are plans to amend certain legal provisions. What exactly are they?
Michel, Geneva
A parliamentary initiative to amend the Federal Law on Debt Collection and Bankruptcy (LP) was tabled as long ago as 2009, and the National Council's Legal Affairs Committee submitted a preliminary draft to the Federal Council in early 2015.
This project was motivated by the fact that the current legal situation is considered to be unsatisfactory for the person being sued, given that under Swiss law a lawsuit can be filed without prior control, as proof of the existence of the claim does not have to be provided.
One of the major problems is that anyone can consult the debt-collection office registers and obtain an extract from them, provided that they can demonstrate a plausible interest, pursuant to art. 8a LP. This extract lists all the debt collection proceedings instituted against the co-named person over the last five years, even if the creditor does not request that the opposition be lifted or the proceedings continued. An entry in the register can be very detrimental to a person who has been wrongly prosecuted, as it is often necessary to produce an extract from the debt collection register in order to find a job or accommodation, or even to obtain a loan.
It is therefore planned to amend the law to allow debt collection agencies, in certain circumstances and at the request of the debtor, to waive the right to bring a claim to the attention of third parties, provided in particular that in the last six months the debtor has not been the subject of a claim by at least two other creditors against the same debt collection agency, or that in the last twelve months a claim against the debtor has not been continued against the same agency.
In addition, there is discussion about giving the debtor the right to demand that the creditor's evidence be produced at any time, contrary to current law.
Lastly, the draft envisages reducing from one year to six months the period within which the right to request the continuation of proceedings lapses, but the Federal Council is not in favour of this, considering that it could prejudice discussions concerning the repayment of the debt, as the creditor would have to take the matter to court more quickly.
