01 February 2018

When does an application for legal protection in clear cases make sense?

Legal protection in clear cases – What is the goal?
If the merits of a claim are clear, long and expensive lawsuits should be avoided. In such situations, a judgment can be obtained quickly and at less expense by means of legal protection in clear cases.

What are the requirements for a legal protection procedure in clear cases?
According to Art. 257 Civil Procedure Code, the court grants legal protection in clear cases if, firstly, the facts are liquid (undisputed or immediately provable) and, secondly, the legal situation is clear.
An undisputed fact exists if the respondent does not dispute the claims of the applicant or if he does not express himself or is in default. A fact is immediately provable if it can be proven without delay and without any special effort. This evidence usually consist of documents.

A liquid legal situation exists if the applicant has a clearly stated legal claim against the respondent. As a rule, this legal claim arises from a deed (judgment, contract, etc.) or from the law. There is no clear right under general clauses, standards with reference to judicial discretion or norms that demand an equity decision.

In most cases, the condition of undisputed facts has proven in practice to be a higher hurdle than the clear liquid legal situation. In particular because according to Swiss Federal Tribunal case law it is sufficient to negate a clear case if the respondent submits substantiated and conclusive objections that cannot be refuted immediately and are capable of undermining the judicial conviction already formed (see DFT 138 III 620, consid. 5.1.1).

What is the procedure for legal protection in clear cases?
The procedure is initiated by submitting an application orally or in writing. A conciliation procedure does not have to be carried out because it is a (special) summary procedure. The other party has the opportunity to comment. A second exchange of legal briefs is excluded and there is no suspension of time limits during the judicial vacation period. It should be noted that full proof must also be provided in the summary procedure, i.e., credibilty is not enough.

How can the court decide on legal protection in clear cases?
If the application for legal protection in clear cases is approved, the claim of the applicant will be affirmed on the merits. This has full legal force and constitutes res judicata (legal remedies reserved). If the decision confirms the right to a cash payment, then there is a definite legal title for having set aside an objection in case of debt enforcement proceedings.

If the court comes to the conclusion that the facts are not liquid and/or the legal situation is not clear, it does not dismiss the application on the merits, but decides not to consider the merits (see DFT 140 III 315, consid. 5). This does not prevent the applicant from initiating a later process in the ordinary procedure. Thus, the assertion of the claim is still possible.

What is the advantage of legal protection in clear cases?
The legal protection in clear cases allows the applicant, in a clear factual and legal situation, to quickly obtain a binding judgment in summary proceedings, which is equivalent to judgments in ordinary proceedings in all respects. In such clear cases, the applicant has the opportunity to receive a verdict by the "short route".

What speaks against applying for legal protection in clear cases?
If the court denies the existence of the conditions for legal protection in clear cases, the applicant must institute ordinary proceedings (or simplified or setting aside proceedings) in order to assert his claim. Compared to the immediate initiation of an ordinary procedure, this leads to loss of time and higher costs.
Also, in practice, the condition of clear law is seldom given, since in most cases different views can be represented and the respondent may present arguments which exclude the approval of the application.

What are typical instances of legal protection in clear cases?
Legal protection in clear cases is basically available on all types of claims. In particular, in proceedings for pecuniary claims in liquid cases, it should be possible to obtain a final title for having set aside an objection in debt enforcement proceedings (and thus having rapidly set aside such objection) through legal protection in clear cases (instrument of creditor protection).

In practice, in clear cases, legal protection is also sought, for example, in the case of requests for the handing over of movable property (e.g., leased objects, work tools after termination of the employment relationship). Practically, this procedure is frequently used for the expulsion of tenants and leaseholders after an extraordinary termination. Further cases are: requests for handing over a file or requests for insight, acquisition of property protection, disturbance of possession and unlawful interference. In the area of trademark protection in certain cases legal protection can also serve to have counterfeit products destroyed.

Legal protection in clear cases is excluded for those matters that are subject to the ex-officio principle (e.g., child support and marriage annulment).

If you have any questions about legal protection in clear cases please contact our dispute resolution team.

Authors: Claudia Walz, Desirée Dietlin

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