Civil Laws at Switzerland
Switzerland operates under a civil law system, which means its legal framework is primarily based on codified laws, rather than on judicial precedent (as in common law systems). The cornerstone of Swiss private law is the Swiss Civil Code (ZGB), supplemented by the Swiss Code of Obligations (OR).
Here's a breakdown of key aspects of civil laws in Switzerland:
1. Sources of Civil Law:
Swiss Civil Code (ZGB - Schweizerisches Zivilgesetzbuch / Code civil suisse / Codice civile svizzero): This comprehensive code, enacted in 1907 and effective since 1912, covers the core areas of civil law. It is divided into five main parts:
Law of Persons (Personenrecht): Deals with natural persons (legal capacity, capacity to act, domicile, civil status) and legal entities (associations, foundations, corporations – although detailed corporate law is mostly in the Code of Obligations).
Family Law (Familienrecht): Covers marriage, divorce, marital property regimes, parent-child relationships (paternity, parental responsibility, child maintenance), and adult protection law.
Inheritance Law (Erbrecht): Regulates the succession of property upon death, including wills, forced heirship, and the distribution of estates.
Property Law (Sachenrecht): Governs ownership, possession, and various rights in rem (e.g., easements, mortgages, pledges) concerning both movable and immovable property.
Swiss Code of Obligations (OR - Obligationenrecht / Droit des obligations / Diritto delle obbligazioni): Often considered the "fifth book" of the Civil Code, the OR deals with obligations arising from contracts, torts (unlawful acts), and unjust enrichment. It includes:
General Part of Obligations: Principles common to all obligations, such as formation of contracts, invalidity, performance, and breach.
Specific Types of Contracts: Detailed rules for various contracts like sale, lease, employment, mandate, partnership, etc.
Commercial Law: Aspects of company law, commercial register, and specific commercial transactions.
Subsidiary Sources:
Customary Law: If no specific statutory provision exists, courts apply customary law.
Judicial Discretion and Doctrine: In the absence of statutory or customary law, the court is expected to decide "in accordance with the rule that it would make as legislator," following established doctrine and case law. While there's no strict stare decisis (binding precedent), Federal Supreme Court decisions carry significant weight and provide guidance.
Cantonal Law: While federal law governs core civil law matters, cantons retain some authority, particularly in aspects of civil procedure and the organization of courts.
2. Key Principles of Swiss Civil Law:
Principle of Good Faith (Art. 2 ZGB): A fundamental principle requiring every person to act in good faith in the exercise of their rights and performance of their obligations. The manifest abuse of a right is not protected by law.
Judicial Discretion (Art. 4 ZGB): Where the law confers discretion on the court or makes reference to an assessment of circumstances, the court must decide in accordance with principles of justice and equity.
Freedom of Contract: Parties generally have broad freedom to enter into contracts, choose their partners, determine content, and select the form of their agreements, within the limits of the law (e.g., contracts cannot be illegal, immoral, or impossible).
Protection of Personality Rights: Individuals have comprehensive protection of their personality rights (e.g., right to life, physical and mental integrity, honor, privacy).
Public Registers and Deeds: Public registers (like the land register or commercial register) and public deeds constitute full proof of the facts they evidence, unless their content is shown to be incorrect.
3. Main Areas of Swiss Civil Law (as per ZGB and OR):
Law of Persons:
Legal personality, capacity to act (age of majority is 18).
Protection of personality rights (physical, psychological, reputational integrity).
Rules for associations (non-profits) and foundations.
Family Law:
Marriage: Formation, effects (mutual rights and duties, marital property regimes – shared acquired property, joint property, or separation of property), dissolution (divorce, annulment). Swiss law does not recognize divorce for fault; common grounds are joint petition or unilateral petition after a two-year separation.
Registered Partnerships: For same-sex couples (until 2022 when marriage for all was introduced).
Parent-Child Relationships: Paternity, parental responsibility, maintenance obligations for children, adoption.
Adult Protection Law: Measures for adults who need assistance due to disability, mental disorder, or similar circumstances.
Inheritance Law:
Intestate Succession: Rules for who inherits if there's no will (legal heirs: descendants, parents and their descendants, grandparents and their descendants; surviving spouse has a special position).
Testamentary Succession: Allows individuals to dispose of their property by will or inheritance contract.
Forced Heirship (Pflichtteilsrecht): Certain heirs (descendants, surviving spouse, registered partner) have a mandatory reserved portion of the estate that cannot be disinherited, limiting testamentary freedom.
Property Law:
Ownership: The most comprehensive right over an object, allowing the owner to dispose of it and reclaim it.
Possession: Factual control over an object.
Real Estate Law: Specific rules for land ownership, acquisition and transfer of property (requiring registration in the land register), mortgages, and easements.
Movable Property: Rules for ownership, transfer, and pledges of movable goods.
Co-ownership: Various forms of collective ownership (e.g., co-ownership, joint ownership, condominium ownership).
Law of Obligations (Code of Obligations):
Contract Law: Governs the formation, validity, interpretation, performance, and termination of contracts. Emphasizes consensus, freedom of contract (within legal limits), and good faith.
Tort Law (Unlawful Acts): Establishes liability for damages caused by unlawful acts (e.g., negligence, intentional harm).
Unjust Enrichment: Obligation to return benefits received without a legal basis.
4. Civil Procedure in Switzerland:
Federal Civil Procedure Code (Zivilprozessordnung - ZPO): Since 2011, Switzerland has a unified federal Civil Procedure Code, harmonizing procedural rules across the cantons.
Cantonal Courts: The organization of the judiciary and the structure of courts remain largely cantonal. Cantons generally have courts of first instance and appellate courts.
Federal Supreme Court (Bundesgericht / Tribunal fédéral / Tribunale federale): The highest judicial authority, which reviews appeals on points of law.
Conciliation Proceedings: Often mandatory before commencing formal legal proceedings, aiming to resolve disputes amicably, usually before a justice of the peace or a conciliation authority.
Swiss civil law is known for its clarity, logical structure, and influence on the civil codes of other countries (e.g., Turkey, Peru, China in the past).
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