Introduction To Swiss Law

by Dessemontet, Francois

• ISBN13: 9789041122605
• ISBN10: 9041122605
• Edition: 3rd
• Format: Hardcover
• Copyright: 2004-07-01
• Publisher: Kluwer Law Intl

Summary

This handy volume offers practitioners and students an introduction to the law of Switzerland. Encompassing all the major fields of legal practice, Introduction to Swiss Law provides an essential understanding of Swiss legal system, with special emphasis on some contemporary issues, so that users can become familiar with the legal institutions and pursue further research on specific Swiss legal matters.With 18 chapters written by Swiss experts in their respective fields of law, each gives French and German terminology and supported with selected list of books in French and German, this is the ideal starting point whenever a question of Swiss law must be answered. The book includes, among others, the following topics:sources of Swiss law;the federal constitution;administrative law;legal persons; family and inheritance ;;property;contracts;civil liability;competition and intellectual property;as well as the fields of corporations, banking law, taxation, labor law, private international law and criminal law. Chapters on civil and criminal procedure include coverage of the essential elements of evidence rules, remedies, and enforcement. A comprehensive list of books and articles on Swiss law in English is also attached to the book. Now in its third edition, this concise and practical guide is sure to continue providing interested parties with a speedy and reliable opening to whatever aspect of Swiss law they need to know. It is also of great value as a comparative source, in broader terms, on Swiss legal practice.

Table of Contents

General Introduction	p. xvii
Acknowledgements	p. xviii
Abbreviations	p. xix
Introduction	p. 1
Overview of Swiss History and Political Institutions	p. 1
Birth, Growing Pains
Ancient Historical Institutions: The Diet and Confederal Arbitration
Modern Times
Sources of Law	p. 5
Enacted Law
Customary Law
Judicial Decisions
Works of Legal Scholars
Divisions of the Law (Public Law and Private Law)	p. 8
The 'Rule of Law'	p. 10
In Theory
In Practice
Jus et Equitas
Three Official Languages	p. 11
Conclusion	p. 12
The Swiss Federal Constitution	p. 15
A Brief Description of the Constitution	p. 15
The Nature of the Constitution
The Style of the Constitution
History of the Constitution	p. 16
Until 1848
The Constitution of 1848
The Constitution of 1874
The Partial Revisions between 1874 and 1999
The Long Way to a Totally Revised Constitution
Modes of Revision	p. 19
General Contents of the Constitution	p. 20
Fundamental Rules
Injunctions upon the Legislator
Unwritten Rules Implied in the Constitution	p. 23
Measures of Control over the Application of the Constitution	p. 23
Political Controls
Judicial Controls
The Constitution and Political Reality	p. 24
Selected Bibliography	p. 26
Cantonal and Federal Administrative Law of Switzerland	p. 27
Introduction	p. 27
Constitutional Influences on Swiss Administrative Law	p. 28
Federalism
Cantonal and Federal Administration
Democracy
Court System
General Principles of Swiss Administrative Law	p. 33
The Administrative Order
The Principle of Legality
The Principle of Due Process
The Principle of Proportionality--Appropriateness
The 'Estoppel' Principle: The Obligation of the Administration to Act in Good Faith
New Public Management	p. 41
The Protection of Property	p. 42
The Protection of Real Property and of Vested Rights
State Responsibility
Taxes
Selected Bibliography	p. 46
Law of Persons	p. 47
General	p. 47
Natural Persons	p. 47
Beginning and End of Personality
Civil Capacity
Name
Domicile
Protection of Personality
Legal Persons	p. 54
Associations
Foundations
Selected Bibliography	p. 58
Family Law	p. 59
Introduction	p. 59
Husband and Wife	p. 60
Marriage and Cohabitation
Engagement to Marry
Making a Marriage
Effects of Marriage as between the Spouses
Matrimonial Property
Divorce and Judicial Separation
Parent and Child	p. 68
Fundamental Principles of Child Law
Establishment of Parentage
Effects of Parentage
Parental Authority
Adoption
Guardianship and Other Protective Measures	p. 73
General Principles
Guardianship
Curatorship
Legal Adviser
Civil Commitment
Selected Bibliography	p. 76
Law of Inheritance	p. 77
Introduction	p. 77
Principles Governing the Law of Inheritance	p. 77
The Immediate Transfer of the Estate as a Whole
The 'Saisine'
The Joint Ownership of the Estate
The Necessity of an Heir
Intestate Succession	p. 78
Partental Ties
Marital Ties
The State
Testate Succession	p. 80
Principles of Testamentary Dispositions
Formalities Required for Testamentary Dispositions
Kinds of Disposition
The Limitations Imposed by the Compulsory Portion
Transfer, Conservation and Restoration of the Estate	p. 87
Intervention of the Probate Authority
Claim to Recover Inheritance
Limitation of Liability for Debts and Protection of the Creditors	p. 87
Limitation for the Debts
Protection of the Creditors
Partition of the Estate	p. 89
General Principles
Hotchpot
Procedure of Partition
Competent Jurisdiction	p. 91
Taxation of the Estate	p. 91
Selected Bibliography	p. 92
Law of Property	p. 93
In General	p. 93
Subject
Background
Land and Chattels	p. 94
Jus in Rem and Personal Right	p. 95
The Identity of Objects	p. 95
The Transfer of Property	p. 97
Fiduciary Rights ('Trusts')	p. 98
Legal Protection of Property	p. 98
Protection of Good Faith Acquisition	p. 99
Common Ownership and Apartment Property	p. 100
The Duties to the Neighbor	p. 100
Property Reserved to the Seller	p. 101
Servitudes	p. 102
Mortgage of Land	p. 103
Pledge of Chattels	p. 104
The Land Register	p. 104
Selected Bibliography	p. 106
Law of Contracts	p. 107
General Remarks on the Swiss Law of Obligations	p. 107
Historical Background and Influence Abroad
Evolutions to be Expected in the Future
Basic Elements of Contracts
Principle of Freedom of Contract
Contracts as Basis for Obligations: No Translative Effect
System of the Legislation; Comparison with Foreign Law	p. 110
Formation of Contracts in General	p. 111
Survey of the Positive Prerequisites of Validity
Form-requirements
No Requirement of Consideration
Negative Elements Making a Contract Void
Formation of Contract (Consensus; Offer and Acceptance)	p. 114
Conclusion of Contracts by Representatives	p. 115
Non-commercial Representation
Commercial Representation
Interpretation; Vitiating Elements in the Consensus	p. 116
Interpretation in General
'Dissensus' Distinguished from 'Error'
Error
Fraud, Duress
Protection of Consumers
Subsequent Impossibility of Performance
Frustration
Breach of Contract	p. 119
Specific Performance
Damages as General Remedy for Breach
Consequences of Delay
Discharge by Breach
Restitution	p. 123
General Remarks
Restitution of a Benefit Granted by the Party Claiming Restitution
Restitution of Unjustly Appropriated Value
Restitution of Value Transferred by Chance
Extra-contractual and Quasi-contractual Obligations	p. 125
General Remarks
Obligations Resulting from Facts of the Debtor
Obligations Resulting from Acts of the Debtor
Obligations Resulting from 'Culpa in Contrahendo'
Assignment and Other Transfers	p. 130
Preliminary Remarks
Assignment of Choses in Action
Assumption of Obligations
Transfer of Business-enterprises with Assets and Liabilities
Transfer of the Position as a Party to a Contract to a Third Party
Set-Off	p. 133
Negotiorium Gestio	p. 134
Limitations of Actions	p. 136
Special Types of Contracts	p. 137
General Remarks
Sale
Letting and Hiring (Rent)
Contract of Manufacture
Agency (Mandate) and Similar Types of Contracts
Selected Bibliography	p. 143
Torts	p. 145
Generally	p. 145
The Concept
Distinctions
Sources
Conditions of Civil Liability	p. 147
General Conditions
Aquilian Liability
Simple Causal Liability (Simple Objective Liability)
Liability for Risk (Aggravated Objective Liability)
Indemnity for Pain and Suffering
Effects of Civil Liability	p. 157
General Principles
Evaluation of Damage
Setting Damages
Particularities of the Indemnity for Pain and Suffering
Concurrent Liabilities
Claim for Damages	p. 161
The Rules on the Statute of Limitations
The Rules of Procedure
Selected Bibliography	p. 163
Commercial Law, Competition Law and Intellectual Property	p. 165
Corporations and Partnerships	p. 165
Introduction
Joint Stock Corporations
Other Companies and Cooperatives
Partnerships
Competition Law	p. 184
Law against Unfair Competition
Law on Cartels and Similar Trade Practices
Patents, Trademarks and Copyrights	p. 190
Protection of Inventions
Trademarks
Copyright Law
Designs and Models
The Semi-conductor Topography ('Chips')
Selected Bibliography	p. 195
Banking Law	p. 197
Public Banking Law	p. 197
Constitutional Basis
Legal Sources
Market Participants
Transaction Rules
Private Banking Law	p. 211
Basis of the Contractual Banking Relationship
Types of Banking Relations
Selected Bibliography	p. 216
Law of Taxation	p. 217
Introduction	p. 217
The Tax System
Administration
Federal Direct Tax	p. 219
Introduction
Tax Liability
Taxable Income
Federal Tax on Profit of Corporations
Tax Period
Computation of the Tax and Tax Rates
Special Cases
Federal Anticipatory Tax	p. 223
Introduction
Income Subject to Tax
Tax Rates
Procedure
Federal Stamp Tax	p. 227
Value Added Tax	p. 227
Federal Tax on Gambling Houses	p. 228
Miscellaneous Cantonal Taxes	p. 228
Inheritance and Gift Taxes
Taxes on Transfer of Real Property
Property Taxes
Conventions for the Avoidance of Double Taxation	p. 229
Common Principles
The Swiss Legislation to Counteract Abuses of Tax Conventions
Labor Law	p. 233
Short Introduction	p. 233
Swiss Rules Concerning Private International Law and Place of Jurisdiction	p. 233
Private International Law
Place of Jurisdiction
Individual Employment Relationship	p. 234
In General
Individual Employment Contract
End of the Employment Contract	p. 239
Different Forms of Termination
Protection against Termination and at an Improper Time
Collective Redundancies
Transfer of the Employment Relationship
Consequences of Termination of the Employment Relationship	p. 242
Strike	p. 242
Definition
Conditions for a Legal Strike
Civil Consequences of the Strike
Selected Bibliography	p. 244
Criminal Law	p. 245
Sources of Swiss Criminal Law	p. 245
Preliminary Note
Constitutional Level
The Swiss Penal Code
Other Penal Legislation
Cantonal Legislation
Case Law
Legal Doctrine
The Scope of Application of the Penal Code	p. 250
As to Time
Regarding the Place of the Offense
Regarding the Offender
General Rules on Offenses	p. 252
Classification of the Offenses
Crimes of Omission
Self-defense and Similar Defenses
Criminal Responsibility
Mens Rea
Specific Preconditions of Punishment
Periods of Limitation (Prescription)
Criminal Attempt
Participation
Criminal Sanctions	p. 262
Sanctions
Measures against Persons
Measures against Objects
Sentencing Rules
The Execution of Custodial Sentences
Selected Bibliography	p. 268
Law of Criminal Procedure	p. 269
Laws on Criminal Procedure	p. 269
General Remarks
Constitutional Level
Statutes on Criminal Procedure
Case Law and Legal Doctrine
The Criminal Justice System	p. 272
Prosecuting Authorities
Trial Courts
The Parties to the Criminal Proceedings	p. 274
Preliminary Observation
The Defense
The Victim
Governing Principles of Criminal Proceedings	p. 276
Preliminary Observation
General Principles
Trial Procedures
The Law on Evidence	p. 278
General Rules
Individuals as a Source of Information and Evidence
Technical Evidence
Coercive Measures	p. 281
Preliminary Observations
Arrest and Detention
Search and Seizure
Examination of Body and Mind
Interference with the Right to Privacy
Special Forms of Procedure	p. 283
Private Prosecution
The Penal Order: The Swiss Form of Plea Bargaining?
Proceedings in the Absence of the Defendant
Proceedings against Children and Juveniles
Remedies	p. 284
Types of Legal Remedies in Criminal Proceedings
Appeals before the Federal Supreme Court
The Individual Application to the European Court of Human Rights
The Petition for Re-trial
Selected Bibliography	p. 286
Law of Civil Procedure	p. 287
Sources of Civil Procedure Law	p. 287
Main Principles of Swiss Civil Procedure	p. 288
Court Structure	p. 288
Persons Participating in the Administration of Justice	p. 290
Judges and Court Reporters or Clerks
Attorneys
Notaries
Parties	p. 290
Commencing an Action	p. 292
Competence
Territorial Jurisdiction
Pleadings
Evidence	p. 294
Burden of Proof
Admissibility
Documents
Witnesses
Experts
Questioning of Parties
Special Procedures	p. 295
Rendition of Judgment	p. 295
Appeal and Other Means of Redress	p. 296
Court Costs, Attorney's Fees and Legal Aid	p. 296
Enforcement	p. 296
Arbitration	p. 297
Selected Bibliography	p. 299
Private International Law	p. 301
Introduction	p. 301
Characteristics
General Provisions
Natural Person	p. 305
The Status of Natural Persons
Marriage and Relationship between Parent and Child
Inheritance
Property	p. 308
In General
Pledge of Movable Property and Retention of Title
Intellectual Property
Contracts, Torts and Corporations	p. 310
Law of Obligations
Corporations
Bankruptcy
International Arbitration	p. 314
Scope of the PIL
Arbitrability
The Arbitration Agreement
Procedure
Appeal
Selected Bibliography	p. 318
Bibliography on Swiss Law (in English)	p. 319
General	p. 319
Constitutional Law and Administrative Law	p. 319
Law of Persons and Basic Principles of Private Law	p. 321
Family Law and Law of Inheritance	p. 322
Property	p. 323
Contract and Tort Law	p. 323
Commercial Law and Business Associations	p. 324
Industrial and Intellectual Property	p. 328
Air Law	p. 331
Banking Law	p. 331
Tax Law	p. 333
Labor Law and Social Insurance Law	p. 335
Private International Law	p. 335
Public International Law	p. 338
Civil Procedure and Arbitration	p. 339
Criminal Law and Procedure	p. 341
Translation of Official Texts	p. 342
Index	p. 345
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