Debt Collection Requests And Orders To Pay – A Possible Criminal Offence?

Author:Ms Birgit Sambeth Glasner, Clarisse von Wunschheim and Cécile Zumstein
Profession:Altenburger Ltd legal + tax
 
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A debt collection request is a commonly used means for a creditor to interrupt the statute of limitations of a claim and begin debt recovery. However, the practicality and simplicity of these proceedings sometimes leads to abuse on the part of creditors.

In this framework, the Federal Supreme Court has lately issued decisions in which it confirmed its case law that a debt collection request and the resulting order to pay - though in and of themselves lawful instruments - can constitute a criminal offence under certain circumstances.

Launching debt collection proceedings: Debt collection request and order to pay

Under Swiss law, a creditor does not necessarily have to file a claim against a debtor before the civil courts to demand repayment of a debt. Instead, the creditor can simply file a debt collection request with the Debt Collection Office at the domicile of the debtor, which will then notify an "order to pay" to the latter. The debtor can declare his opposition to the order to pay by means of a simple declaration, either on the same document or separately. This opposition will stop the debt collection proceedings. In order to continue them, the creditor will need to have the debtor's opposition set aside, which involves filing a civil claim in court, where the validity of the claim is examined. In other words, it is only if the debtor objects to the order to pay that the creditor needs to turn to the courts.

Submitting a debt collection request is therefore a simple and practical means of recovering uncontested debts. In practice, a debt collection request is also often used to notify the debtor of the creditor's intention to enforce his claim by means of legal action if necessary.

A debt collection request and the resulting order to pay can constitute a criminal offence

Even though they are entirely legal instruments, a debt collection request and the resulting order to pay can amount to a criminal offence under certain circumstances. Especially relevant in this context is the crime of coercion under the Swiss Criminal Code.

Coercion may be given when an order to pay is considered to be an abusive or immoral means of pressuring a debtor. According to the case law of the Federal Supreme Court, being served with an order to pay a large sum of money is a psychological burden for a person of average sensitivity. Such an order to pay is thus likely to induce an average person to give in to the pressure and to substantially hinder his...

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