SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
1. Fraud Claims 1.1 General Characteristics of Fraud Claims Switzerland being a civil law jurisdiction, civil remedies often need to be supported by crimi - nal remedies. The institution of criminal proceed - ings enables the victims of fraud participating as plaintiffs to request that the law enforcement authorities issue broad freezing and disclosure orders from defendants and third parties holding assets or information (see 2.5 Criminal Redress ). “Fraud” has a narrower meaning under Swiss law than the general term “civil fraud” of com - mon law and refers to notions of criminal law rather than of private law. For the purpose of this article, the term “fraud” is defined broadly to include, in particular but not limited to, the following felonies of Swiss criminal law: embez - zlement, fraud, criminal mismanagement, money laundering, felonies committed in bankruptcy, forgery, conspiracy, corruption and bribery. The main civil remedy available for fraud claims is the liability in torts provided for by Article 41 of the Swiss Code of Obligations (SCO). Tort liabil - ity is given when the claimant proves that the defendant committed an unlawful act. In addi - tion to deceit (Article 28 SCO) and infringement of absolute rights such as property, tort liability will be given in cases of criminal offences when the goal of these offences is to protect assets or interests that were harmed. Liability in torts may also concur with liability for breach of contract (Article 97 SCO) or unjust enrichment (Article 62 SCO), in particular where they are combined with motives of impossibil - ity (Article 20 SCO), unfair advantage (Article 21 SCO), misrepresentation (Article 23 SCO) or duress (Article 29 SCO).
1.2 Causes of Action After Receipt of a Bribe There are no specific causes of action available in Switzerland to a claimant whose agent has received a bribe and general rules on liability for damages will apply. It is worth mentioning, however, that an agree - ment entered into through the payment of a bribe is not, by that very fact, illegal or immoral. A contract obtained by bribing a civil servant is void only if the reprehensible nature of the con - duct extends to the content of the agreement. The agreement may, however, be voided on the ground of misrepresentation. 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts Article 50 paragraph 1 SCO provides that where two or more persons have together caused damage, whether as instigator, perpetrator or accomplice, they are jointly liable to the person suffering damage. The court determines at its discretion whether and to what extent they have a right of recourse against each other (Article 50 paragraph 2 SCO). Where the participants of the criminal offence caused the same damage together, the claimant may bring claims against any of the participants. The recipient of fraudulently obtained assets shall be liable in torts if they handled (know - ingly or in bad faith) stolen “goods” (excluding claims), by taking possession of, accepting as a gift or as the subject of a pledge, concealing, or assisting in the disposal of goods which they know or must assume have been acquired by way of an offence against property only to the extent that they received a share in the gains or caused damage due to their involvement (Article 50 paragraph 3 SCO).
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