The enforcement by action lawsuit clarifies the existence of the claim of the creditor, obligates the debtor to payment, and removes the legal objection.
Legal Basis
If the debtor raises a legal objection in a debt enforcement proceeding, the claim must be asserted in a civil law suit or administrative procedure, and the legal objection must be removed (art. 79 DEBA). Civil law claims are enforced through by enforcement by action in a conventional civil lawsuit.
Claim action and removal of objection
The creditor, against whose debt enforcement a legal objection has been raised, must assert their claim in a civil lawsuit. They can only continue the debt enforcement based on an enforceable decision that expressly removes the legal objection.
If the creditor has no enforcement title or if the creditor fears the rejection of an enforcement request (due to objections or defenses raised by the debtor) in the summary proceedings to set aside such objection, the legal objection must be removed through an ordinary civil lawsuit, the enforcement by action lawsuit.
Aim of the enforcement by action lawsuit
With the enforcement by action lawsuit according to art. 79 DEBA, it is determined whether the claimed debt exists in substantive law and whether the defendant party is obligated to fulfill it. This constitutes a substantive legal action, similar to the action for release from debt according to art. 83 para. 2 DEBA (BGE 133 III 645 E.5.2; 119 III 63 E.4b).
Effect of the enforcement by action lawsuit
Upon the enforcement by action lawsuit being granted, the defendant party is obligated to pay the claimed amount to the plaintiff (creditor). The judgment in the recognition procedure carries legal effect in substantive law.
With the enforcement by action judgment being granted, the legal objection is removed. Therefore, the enforcement by action lawsuit also encompasses an element of enforcement law (BGer 5A_383/2020 E.2.2).
Deadlines
Payment orders generally have a validity period of one year (art. 88 para. 2 DEBA).
If the enforcement by action lawsuit is not filed during the validity period of the payment order, the legal objection cannot be removed in the affected debt enforcement.
Therefore, there is a time limitation for filing the enforcement by action lawsuit, which is defined by the validity period of the payment order. The Debt Enforcement and Bankruptcy Law does not otherwise specify a deadline for filing the enforcement by action lawsuit.
When filing the lawsuit, the creditor must consider any statutory forfeiture periods that apply to their claim. The statute of limitations is already interrupted by the debt enforcement proceedings (art. 135 para. 2 CO).
