Facts
The case concerns the question of when the one-month time limit under Art. 63 para. 1 CPC for filing the claim with the competent court begins if a court does not enter into the merits of a claim due to lack of jurisdiction and no legal remedy is taken against this non-entry decision.
The lower court assumed that the one-month time limit in such a case begins to run already with the service of the non-entry decision. The appellant argued that the time limit only begins with the legal force of the non-entry decision.
Considerations
The wording of Art. 63 para. 1 CPC is not clear on this issue. On the one hand, it does not mention the service of the non-entry decision, as is the case in Art. 311 and 321 CPC for the filing of an appeal and a complaint. On the other hand, it also does not mention the legal force of the non-entry decision, which would be obvious if the legislator had intended the solution preferred by the appellant.
In the literature, there are different views. Some argue that the one-month time limit begins with the legal force of the non-entry decision in the absence of a legal remedy. Other authors are of the opinion that it begins already with the service or notification of the non-entry decision.
The Federal Supreme Court decided that the one-month time limit under Art. 63 para. 1 CPC, as already with the analogous provision of Art. 139 former CO, begins to run with the service or notification of the non-entry…