SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
report and the audit report, must be retained for ten years following the expiry of the financial year (Article 958f(1), SCO). Corporations that have issued bonds or are listed on a stock market must publish or pro - vide on request their annual accounts and consoli - dated accounts together with the audit reports (Article 958e(1), SCO). For other undertakings, creditors with a legitimate interest may ask to inspect the annual report and the audit reports (Article 958e(2), SCO). 2. Domestic Judgments 2.1 Types of Domestic Judgments Swiss law identifies different categories of judgments. Final, Interlocutory and Partial Judgments The judgment is final when it puts an end to the pro - ceedings, whether by a decision on the merits (on substantive law grounds) or by a decision of dismissal (on procedural grounds). The judgment is interlocutory when the court of appeal could take a contrary deci - sion that would put an end to the proceedings and would allow an appreciable saving of time or costs. The interlocutory judgment settles, without ending the proceedings, either a substantive preliminary ques - tion or a procedural question (see pretrial issues). The judgment is partial when the court rules on part of the case on the merits without ending the proceedings. Judgment on the Merits and Procedural Judgment A judgment on the merits of the case decides either on the claim (admission or rejection of the action) or on a material preliminary question (admission or rejection of a substantive legal objection). A proce - dural judgment is the pronouncement by which the judge decides whether they are authorised to enter into the merits of the case and, consequently, to ren - der a judgment on the merits at a later date. The court issues either a decision of dismissal if a pretrial issue is missing, or an admissibility decision if it considers the challenge to the existence of a pretrial issue to be unfounded. Contradictory Judgment and Judgment by Default A contradictory judgment is given when both parties have been heard by the judge before the decision is made. A decision by default is given when the defend -
ant does not appear at the trial and the judge decides without hearing them. Condemnatory, Formative or Declaratory Judgments The condemnatory judgment corresponds to the con - demnatory action that condemns the defendant to performance. The formative judgment corresponds to the formative action that creates, modifies or removes the right that is the subject of the case. The declara - tory judgment corresponds to the declaratory action that establishes the existence of the right invoked by the claimant. The Civil Procedure Code (CPC) deals specifically only with: • the final judgments (Article 236, CPC); • the interlocutory judgments (Article 237, CPC); • the interim measures (Articles 308 (1)(b) and 319 (a), CPC); • the ex parte interim measures (Article 265, CPC); and • the “other decisions and orders of instruction” (Article 319 (b), CPC). Interim measures are to ensure the subsequent com - pulsory execution of a right, to provisionally settle a legal situation before the court has ruled on the mer - its of the case, or to take evidence today that could disappear tomorrow. They do not have the force of res judicata. Ex parte interim measures are issued in cases of urgency; they differ from (ordinary) interim measures only in that they are issued without the opposing par - ty being heard beforehand. If the court grants such measures, it must then promptly hear the opposing party and rule without delay on the application for interim measures (Article 265 (2), CPC). It then issues a decision on interim measures that replaces the ex parte interim measures. It is not possible to appeal against ex parte interim measures. The other decisions concern purely procedural mat - ters. To this extent, they have the force of res judicata regarding the parties and third parties concerned.
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