Public notice procedure

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The public notice procedure (in Austria edict procedure ) is a public judicial request to register claims or rights. It is usually used to have documents declared invalid or to lapse rights if no claim or right is registered within the notice period (usually six weeks). Since September 1, 2009, issues of voluntary jurisdiction have been regulated in Germany and in Sections 433 to 484 of the Act on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction ( FamFG ).

procedure

The public notice procedure takes place in a number of cases required by law upon written request . Charge the local jurisdiction is District Court ( § 23a 1, para. 2 no. 7 in connection with Abs. Nr. 2 GVG , § 3 no. 1c RPflG ).

The court then makes a public announcement of the call. This must be done by attaching it to the court notice board and publishing it in the electronic Federal Gazette . Instead of the notice on the court board, the public announcement can be made in an electronic information and communication system that is publicly accessible in the court. The court can order further publications (e.g. in daily newspapers). The content of the publication must be at least:

  • the name of the applicant
  • the request to register the claims and rights with the court by a certain point in time (registration time)
  • the description of the legal disadvantages that occur if the registration is not made.

The court sets a notice period within which those affected must register their rights. This is at least 6 weeks ( Section 437 FamFG).

If no registration is received within the notice period, a so-called exclusion resolution will be issued. This makes documents invalid or declares rights to be extinguished or restricted.

An appeal can be lodged against the exclusion decision and the retrial can be applied for. An action for annulment, as against the exclusion judgment, is no longer necessary.

use cases

A public notice procedure only takes place in the cases specified by law. These are u. a .:

Real estate law

With the public notice procedure , an owner of a property can, under strict conditions, be excluded from his property right to the property after 30 years.

Registration basis:

1st conveyance, § 925 BGB

2. Exclusion resolution, § 927 BGB

If these conditions are met, the new owner can be entered in the land register . Through this process, he becomes owner ( property ) from owner ( possession ).

Inheritance law

In inheritance law, the public notice procedure is used to determine the extent of the estate's liabilities ( Section 454  ff. FamFG). After the exclusion judgment, the testator's creditors who do not register their rights in due time can only demand claims from the estate, but not from the heirs' other assets. This gives the heirs the security of whether the estate is over-indebted or not.

Marriage law

For by 1998 legally prescribed squad in marriage law, see: array (marriage law)

Securities

The declaration of invalidation of securities took place - until the revision of the notification procedure within the FamFG in force since September 1, 2009 and the simultaneous expiry of Sections 946 to 1024 ZPO - through the specially regulated notification procedure according to Sections 1003 ff. ZPO old version ("old version ") in the form of a judicial exclusion judgment (§ 1017 ZPO old version). Today, § 466 to § 484 FamFG apply to the invalidation of securities .

General

The right evidenced in a security does not perish if the document is destroyed or lost. However, since the debtor only has to provide his performance against delivery of the document, the assertion of the right fails on the presentation of the security by the rightful owner. This conflict is resolved through the public notice procedure. The invalidation prevents the finder of a lost security from unjustifiably demanding payment from the debtor. In the case of bearer papers , even the thief or finder has such a strong legal position that he can demand the performance evidenced therein from the issuer of the document ( Section 935 (2) BGB), as long as his ignorance is not based on intent or gross negligence. In order to prevent this legal protection from depriving the rightful owner of the document of the performance to which he is entitled, the thief or finder is excluded from his legal position by the declaration of invalidity.

Legal bases

The notification procedure for securities is finally regulated in § 466 to § 484 FamFG. In the case of most securities, statutory provisions also indicate that documents may be invalidated ( Section 799 , Section 808, Paragraph 2, Sentence 2, Section 1162 , Section 1192 , Section 1199 BGB; Section 365, Paragraph 2 HGB ; Section 72 AktG; Art . 90 WG; Art. 59 CheckG). After the notice period has expired (at least 6 weeks, at most 1 year - § 437 , § 476 FamfG), the deed is declared invalid by the exclusion resolution ( § 478 para. 1 FamFG) and at the same time enables the creditor to exercise the rights from the To be able to assert a deed from the debtor without a deed ( Section 479 (1) FamFG).

special cases

Although there is also provision for a notification procedure for limping bearer securities in accordance with Section 483 FamFG, there is the possibility of a simplified notification procedure for savings (cash) books . This procedure takes place out of court by making the loss public in the municipal or official gazette and giving the owner of the savings (kassen) book the opportunity to register his / her rights within three months. After the deadline has expired, the bank's board of directors will declare the savings (cash) book to be inoperative (for example in accordance with Section 16 (2) No. 6 of the NRW Savings Banks Ordinance).

In the case of shares, the declaration of nullity may also be carried out out of court in three cases by the stock corporation if its own shares have to be submitted to it for specific purposes, but have not been submitted after a period of limitation:

  • at caduition (the AG issues a new one instead of the old one),
  • in the case of a capital reduction in the shares that were not submitted for exchange or stamped despite being requested to do so ( Section 226 AktG),
  • in the case of shares whose content has become incorrect ( Section 73 AktG).

consequences

After the declaration of invalidation, the finder or thief can no longer assert his rights with the issuer despite possession of the securities, because the deed declared invalid (the legitimation function is no longer valid), even bona fide buyers of the securities concerned are no longer protected. The nullification therefore works against everyone. The exclusion decision in turn entitles the applicant to assert the rights from the deed against the debtor without a deed ( Section 479 (1) FamFG).

Web links

Individual evidence

  1. ^ Draft of a law to reform the procedure in family matters and in matters of voluntary jurisdiction (FGG Reform Act - FGG-RG) BT-Drs. 16/6308 of September 7, 2007, p. 294 ff.
  2. ^ Reichard Holzhammer, General Commercial Law and Securities Law , 1998, p. 297 f.
  3. ↑ the municipality in which the issuing credit institution has its registered office