Deadline standstill also in judicial matters under the SchKG?
On 20 March 2020, the Federal Council issued an ordinance based on Art. 185 para. 3 of the Federal Constitution which decrees a standstill for statutory time limits and time limits ordered by the authorities or courts. The prerequisite for a time limit to be covered by the standstill is that under the applicable federal or cantonal procedural law, the time limit would stand still over the Easter period even without the ordinance. Obviously excluded are conciliation proceedings and summary proceedings as well as criminal proceedings, because these proceedings do not provide for court holidays in principle.
The applicability of the prescribed time limit standstill in judicial matters of debt enforcement and bankruptcy law is questionable. The prerequisite for this is the applicability of the ZPO.
"Practitioners are well advised to ignore the time limit standstill in judicial matters of debt collection and bankruptcy law."
Provided it is not a judicial matter, the provisions of the CCP on the calculation, observance and running of time limits may apply by reference in Art. 31 SchKG. However, this is only the case if the SchKG does not contain a deviating provision. In the area of holidays and the suspension of time limits, the SchKG provides otherwise, which is why the provisions of the ZPO do not apply in this regard. In addition, Art. 145 para. 4 CCP contains an explicit reservation of the provisions of the SchKG on debt collection holidays and legal standstill. In matters of debt collection and bankruptcy law that are not covered by Art. 1 lit c CCP, Art. 56 et seq. SchKG therefore take precedence as special provisions and the court holidays under CCP do not apply. This applies in particular to debt collection appeals under Art. 17 f. SchKG and orders of the enforcement bodies.
In principle, the CCP applies to judicial matters of debt enforcement and bankruptcy law within the meaning of Art. 1 lit c CCP. Whether this also applies to the provisions on judicial holidays, or whether the reservation in Art. 145 para. 4 CC P is to be understood comprehensively, is disputed in the doctrine. As far as can be seen, this question has not yet been decided by the Federal Supreme Court for court proceedings under debt enforcement and bankruptcy law (legal question expressly left open in BGE 141 III 170 E. 3). The Cantonal Court of Lucerne had to decide on this legal question and came to the conclusion that the reservation in Art. 145 para. 4 CCP does not apply to all judicial matters of the SchKG, but only to disputes under debt collection law(case number 1B 15 16).
We are of the opinion that the court holidays of the CCP should apply in particular to court disputes in which the debt collection holidays and the legal stay under the SchKG are excluded, as is the case, for example, with a collocation action. The collocation action (Art. 148 and Art. 250 SchKG) is a so-called debt enforcement dispute with a reflex to substantive law, which is why - based on Art. 1 lit c ZPO - it falls under the scope of application of the ZPO. With regard to purely debt collection law disputes, the applicability of the stay of time limits is very uncertain. In principle, these are covered by the legal deadlock in the debt collection system (see also previous news article).
In conclusion, it can be stated that in our view the standstill of time limits decreed by the Federal Council on 20 March 2020 applies to court disputes under Art. 1 lit c CCP (in particular those excluding debt collection holidays and legal style). Practitioners are nevertheless well advised, due to the prevailing legal uncertainty, to exclude the applicability of the ordinance on the standstill of time limits in case of doubt and to comply with the time limit without taking the standstill of time limits into account.
Sebastian Wälti will be happy to answer any questions you may have on this topic.