Facts
The case concerns claims from a supplementary insurance to the social health insurance under the Federal Act on Health Insurance (KVG). Such claims are assessed in the simplified procedure according to Art. 243 et seq. of the Swiss Civil Procedure Code (ZPO). The procedure is predominantly oral, with the social investigation principle being applicable.
The appellant filed a written and reasoned claim. Pursuant to Art. 245 para. 2 ZPO, the court initially set a deadline for the defendant party to submit a written statement. Subsequently, the court informed the appellant that it did not consider a further exchange of written submissions pursuant to Art. 246 para. 2 ZPO to be necessary and that it would now proceed to assess the claim.
The appellant did not respond to this letter. The court then issued the contested decision without holding an oral hearing.
Considerations
The Federal Supreme Court decided that the lower court had violated the appellant's right to a hearing. According to Art. 245 para. 2 ZPO, an exchange of written submissions is initially foreseen before the court either orders a further exchange of written submissions or summons the parties to a hearing.
An exception to holding a main hearing is only permissible if both parties waive it. A tacit waiver may exceptionally be…