Foreclosure law (Germany)

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The compulsory enforcement law of the Federal Republic of Germany is the right to enforce or secure a private, civil law claim of a creditor against his debtor . This is to be distinguished from administrative enforcement , see there.

Due to the state's monopoly on the use of force , enforcement may only be carried out by state enforcement agencies, such as bailiffs . Unauthorized enforcement is prohibited for the creditor with the exception of permitted self-help and is usually illegal as vigilante justice . The citizen's right to legal assistance from the state, the right to the granting of justice, corresponds to the prohibition of unauthorized help and the reference of the creditor to state enforcement bodies . The enforcement law serves its implementation.

In enforcement proceedings, the obligee gains access to his debtor's assets so that he can use them to satisfy his claim.

Enforcement requirements

Foreclosure is carried out at the request of the obligee on the basis of an enforceable title that obliges the debtor to perform a certain amount. As a rule, the creditor woman attains the title as part of an upstream recognition procedure in court as a judgment for performance . However, enforcement can also be made from other documents, such as certain settlements , enforcement notices and cost-fixing decisions . More details under Enforcement Order . The prohibition of self-help results in the fact that the creditor cannot formulate his claim himself (but he can very well instruct the bailiff to enforce costs and interest - an examination does not take place).

The title is only a suitable basis for foreclosure if it is also provided with an enforcement clause.

The third prerequisite for foreclosure is the prior delivery of the title to the debtor.

Legal sources, systematic classification and delimitation

A distinction must be made between individual foreclosure and total enforcement. The former serves to satisfy individual creditors from individual assets of the debtor. It is largely regulated in the eighth book of the Code of Civil Procedure (ZPO) from 1877. For enforcement in real estate, these standards are supplemented by the Foreclosure Auction and Administration Act (ZVG) of 1897.

If the debtor objects from the adhesion mass removed by transfer to third parties in order to evade the access of the executing creditor retransmission claims can after the avoidance law arise (AnfG).

The total enforcement regulated in the 1994 Insolvency Code, on the other hand, serves to satisfy all creditors from the entire assets of the debtor. It is not dealt with further in this article, cf. under bankruptcy code .

To distinguish further between the treated in this article private law enforcement, be enforced with the civil claims, and the administrative execution of the public right , with the administrative file and management contracts are enforced. It is characteristic of administrative enforcement that administrative acts can be enforced without prior knowledge proceedings (“self-titling”) and that the enforcement authority is usually identical to the issuing authority (“self-enforcement”). This is what distinguishes compulsory enforcement in civil law from administrative enforcement. For the enforcement of an administrative act under public law , such as a tax claim or a police order , an enforcement order or an order that is enforceable by the authorities with final effect or immediate enforceability is sufficient as an enforcement order .

Procedural principles

The enforcement procedure only begins at the request of the obligee. In accordance with his control over his material law, the obligee should also be able to freely determine enforcement. Like the discovery procedure, the enforcement procedure is also determined by the disposition maxim .

The right to be heard ( Article 103, Paragraph 1 of the Basic Law) must, as a rule, subordinate itself to the efficiency of the enforcement in enforcement proceedings. However, the enforcement debtor is given the opportunity to present his point of view in a sufficient manner after completion of the enforcement by filing an enforcement remedy. An exception are decisions by the trial court in enforcement proceedings, against which an immediate appeal is permissible. In this way, the enforcement debtor is also granted a legal hearing before the trial court in the case of the enforcement of justifiable acts (with the exception of surrender claims ) and unjustifiable acts (including declarations of intent , toleration and omission ) ( Section 891 sentence 2 ZPO).

The principles of publicity , orality and immediacy do not apply.

In order to find out the jurisdiction of enforcement bodies in civil enforcement proceedings and the admissible enforcement measures, one must ask about the type of claim that is to be enforced and determine the object in which the enforcement is to be carried out. Competent enforcement bodies in the context of civil enforcement proceedings are:

Enforcement
reason 		Foreclosure on pecuniary claims Foreclosure due to other acts or omissions
enforcement
object 		movable property Real estate reasonable acts unacceptable acts Tolerance and omission
Fahrnis Rights against
third party debtors 		Surrender of things other acts Submission of a
declaration of intent 		other act
Fahrnis Real estate
Enforcement
body 		bailiff Enforcement Court Enforcement court and
land registry 		bailiff bailiff Trial court Trial court Trial court Trial court
Enforceable
ungsmaß-
takeover 		Attachment and
public auction 		Entanglement and transfer
for collection or
payment in lieu of face value 		Registration of a security mortgage
and foreclosure auction
or administration 		Removal of the thing and delivery to the creditor Relief of the debtor from and instruction of the obligee in the possession ( eviction ) Authorization of the obligee to carry out the act at the expense of the debtor Fiction of submitting a
declaration of intent 		Fine or
imprisonment 		Fine or
custody
Legal
basis 		§§ 808 ff. ZPO §§ 829 ff. , §§ 835 ff. ZPO Sections 867 and 869 ZPO in connection with ZVG §§ 883 f. ZPO § 885 ZPO § 887 ZPO §§ 894 f. ZPO § 888 ZPO § 890 ZPO

Explanation of the diagram: The enforcement court is the district court in whose district the enforcement proceedings are to take place or have taken place. The local jurisdiction of the enforcement court is exclusive ( § 802 ZPO). The trial court is the trial court of first instance. It differs from the enforcement court if the regional court has jurisdiction in the first instance (usually for amounts in dispute over 5,000 euros, which do not represent claims from a tenancy or disputes concerning the family). Within the enforcement body “enforcement court”, the judicial officer is functionally responsible for enforcement . The land registry is a division of the local court.

In the case of enforcement, a special allocation consists of judgments and decisions of the administrative and financial courts against the public sector ( § 167 VwGO; § 151 FGO), in the case of judgments and decisions of the social courts, however, only in the context of the execution for unjustifiable acts ( § 201 SGG) , while the enforcement of pecuniary claims from a social court decision must be pursued through civil law.

In contrast to the enforcement procedure under civil law, the enforcement body of the respective competent authority with its office and enforcement officers (principle of self-enforcement) is in the procedure of administrative enforcement.

Individual enforcement measures

The individual enforcement measures differ considerably from one another. Enforcement can take place

  • if there is a monetary claim,
  • if something is to be surrendered,
  • because actions have to be taken (toleration or omission).

If a monetary claim is titled, the following enforcement measures are possible:

Attachment and auctioning of a movable property

When a movable thing is attached ( attachment of property ), the bailiff takes possession of the thing that is in the custody of the debtor . A thing is in the custody of the debtor if he has the externally recognizable possibility of exercising direct actual control over the thing. The legal situation regarding the matter is irrelevant (except where it is obvious). The bailiff therefore does not check whether the thing to be attached is also owned by the debtor. If something is attached that does not belong to the debtor, the owner can defend himself with the help of a third party action. If the thing to be attached is in joint or sole custody of a third party, the attachment is only possible if the latter is ready to surrender. An obligation of the third party to surrender it does not matter because of the lack of substantive legal review competence of the bailiff. If the third party is the enforcement debtor's spouse or partner, the enforcement debtor's custody is always presumed if this matter is not dedicated to the exclusive use of the other spouse (e.g. wife's clothes, husband's tiepin, etc.).

With the seizure, the matter becomes entangled . This means that the debtor can no longer dispose of the thing . This prohibition of disposal is secured by § § 135 , § 136 BGB. Entanglement with a breach of entanglement is protected under criminal law in Section 136 of the Criminal Code.

“Taking possession by the bailiff” means the establishment of direct possession (e.g. money, valuables and securities) or indirect possession. The mediation relationship which establishes the indirect possession of the bailiff is of a public law nature; its effectiveness is due to the affixing of seals ("cuckoo"). The colloquial term cuckoo results from the on the pledge seal knowing about imperial eagle or later federal eagle .

By the seizure of the judgment creditor acquires a lien on the thing that gives him the same rights as a bargaining chip right (= contract conditional lien). The pledging is realized in the form of an auction by the bailiff. He can carry out the auction on site or via a special auction platform on the Internet. Securities can also be sold at the stock exchange or market price by the bailiff.

To protect the enforcement debtor, non-attachable items (listing § 811 ZPO) and garnishment protection for income from work / remuneration are provided in § 850  ff. ZPO.

If the advised foreclosure is obviously unsuccessful, the bailiff issues a certificate of non-attachment .

Of the 7 million seizure orders in 2006, there were 10,268 foreclosures.

Attachment and transfer of a claim

This type of enforcement is a seizure of a third party debtor , i.e. a natural or legal person who in turn owes the debtor something, e.g. B. the employer as a third party debtor pays the debtor's wages. The whole thing happens with the help of a garnishment and transfer decision (PfÜB), in which both the debtor and the third party debtor are to be named.

The best known in this context are:

When attaching wage and salary claims, the exemption limits based on the attachment table ( § 850c ZPO) must be observed to protect the debtor . The attachment table also takes into account reasonable maintenance obligations , i.e. This means that the exemption from attachment is lower for unmarried persons without children than for existing maintenance obligations. However, if you are attached yourself because of one of these maintenance obligations, the statutory exemption limits do not apply. Instead, the court has to set an appropriate exemption in individual cases , which is below the table ( § 850d ZPO).

Current social benefits (cash benefits) can, with a few exceptions, such as income from work, be seized ( Section 54 (4) SGB I); This concerns z. As pensions, sick pay and unemployment compensation . Unemployment benefit II cannot be attached (Section 42 (4) SGB II), so the job center is basically not a third party debtor. If account balances are seized, there is protection from seizure only with a P-account . It does not matter where the credit on the P account comes from. It is therefore irrelevant, for example, whether the credit on the P-account is due to income from self-employment, an employee activity or social benefits ( § 850k ZPO).

If the third-party debtor refuses to pay the obligee, the obligee cannot enforce the debt directly against the obligee: An enforceable title only exists against the debtor. However, the creditor is entitled to information about the amount of the attachable amounts and can assert the claim with a performance suit in the so-called collection process . The litigation authority of the creditor is initially controversial: According to one view, the creditor asserts the claim in legal litigation , according to another view he sues in his own right. In the collection process, the third-party debtor cannot counter the obligee that the attachment and transfer order is not lawful if the limits of nullity of the attachment and transfer order are not reached.

Foreclosure auction or administration in the immovable property

Foreclosure against real estate has a special position compared to execution against movable assets (execution) and / or intangible assets.

Special legal regulations can be found in the law on foreclosure sales and administration (ZVG). Unless special regulations are made in the ZVG, the ZPO also applies to real estate enforcement.

General regulations ( §§ 1 ff. ZVG)

For the foreclosure auction and foreclosure, the enforcement organs are the district court in whose district the property is located, as the enforcement court ( § 1 ZVG) and there functionally the judicial officer ( § 3 No. 1 lit. i RPflG )

Rough overview

The foreclosure auction ( §§ 15 ff. ZVG) is intended to redeem the value of the property itself; Similar to §§ 814 ff. ZPO, the proceeds after deduction of the costs are paid to the obligee for satisfaction.

The compulsory administration ( §§ 146 ff. ZVG) deprives the debtor of the administration of the property and transfers it to an administrator. The creditor is satisfied from the use of the property, e.g. B. In the case of a hotel under compulsory administration, the proceeds from accommodation and restoration are transferred to the creditor by the administrator.

Pursuant to Section 866 (2) of the German Code of Civil Procedure, the obligee is free to choose whether he wants to seize enforcement options alone or in parallel.

Interim legal protection

Sometimes the need for legal protection is so urgent that ordinary civil proceedings would come too late. In urgent cases, you can therefore be entitled to temporary legal protection. The ZPO provides the creditor with several measures for this purpose:

The arrest ( §§ 916 ff. ZPO) serves to secure enforcement of pecuniary claims.

The temporary injunction ( §§ 935 ff. ZPO) serves to secure an (individual) claim that is not directed at money (action, tolerance, omission). The aim is to secure the law or to make a provisional regulation.

Both procedures are summary cognitive procedures. This means that there is no comprehensive clarification of the facts; however, the court has to examine the matter in legal terms with the same level of density as in normal proceedings. In practice, the injunction is of greater importance.

Appeals against enforcement

The most important enforcement remedies are the enforcement reminder , the immediate complaint , the third party objection action , the action for preferential satisfaction and the enforcement defense action . The enforcement reminder and the immediate complaint allege formal errors in the enforcement process. The third party opposition action, the action for preferential satisfaction and the enforcement defense action concern deficiencies in the enforcement reason or the subject of enforcement. The remedies in enforcement proceedings must not be confused with the remedies of the obligee to obtain an enforceable title.

In the case of the amendment suit according to § 323 ZPO (e.g. for the reduction of titled child support) instead of an enforcement action, the "preliminary suspension of the foreclosure" analogous to § 769 ZPO is required.

Schematic overview of the legal remedies:

Factual decision prerequisites
Legal remedies against formal errors in enforcement proceedings Legal remedies against errors in the reason for enforcement or the subject of enforcement
immediate complaint Enforcement reminder Third party opposition action Complaint for preferably satisfaction Enforcement defense suit (enforcement counterclaim)
Admissibility Decisions in foreclosure proceedings without an oral hearing Requests, objections and reminders regarding the manner of enforcement that are not decisions (actions of the enforcement body) a right preventing alienation non-possessory liens; Preferential rights Objections and defenses regarding the titled claim
Jurisdiction Appeal court Enforcement Court Trial court Enforcement law; if the amount in dispute is over 5000 € district court Trial court of first instance
Decision-making authority Enforcement debtors and creditors Enforcement debtors and creditors; Third parties only if a third-party protective provision is asserted Third party who is neither the enforcement debtor nor the enforcement creditor Third party who is neither the enforcement debtor nor the enforcement creditor Enforcement debtor
Deadline and form within an emergency period of two weeks; in writing or for the minutes of the office no deadline; in writing or for the minutes of the office no deadline; In writing or, if the district court is the trial court, also for the record of the office no deadline; In writing or, if the district court is responsible, also for the record of the office no deadline; In writing or, if the district court is responsible, also for the record of the office
Legal basis Section 793 ZPO Section 766 ZPO Sections 771-774 ZPO Section 805 ZPO Section 767 ZPO

The place of jurisdiction (local jurisdiction) of the enforcement bodies is exclusive. It can neither be waived by the parties, nor is there a choice between general and special place of jurisdiction.

Immediate complaint

The immediate complaint takes place against decisions in foreclosure proceedings that can be issued without an oral hearing. The term “decision” is to be distinguished from the term “type and manner of enforcement”, the defects of which are asserted in the context of the enforcement reminder. A decisive factor in a decision is that an enforcement body weighs up the reasons for and against a particular decision. If the law enforcement body does not have to weigh up, as is the case with the bailiff, the reminder is always the legal remedy. Conversely, if the trial court has to carry out enforcement, only an immediate appeal is permitted. In the case of files of the enforcement court, a distinction must be made: If the parties' submissions have been assessed by the enforcement court, the appellate court must decide on the facts presented in the context of the contestation by means of an immediate appeal. Another appraisal by the enforcement court as part of the memory would be pointless. If the enforcement debtor is granted a fair hearing, the enforcement always becomes a decision of the enforcement court, which is to be contested before the appellate court, even if the enforcement body should not have granted a fair hearing for reasons of the effectiveness of the enforcement (e.g. the enforcement court in the case of attachment of claims). Conversely, any enforcement without the granting of a legal hearing is a measure that must be reprimanded by the enforcement reminder. The appellate court decides by decision.

It is important that against decisions of the land registry as the enforcement body, not an immediate complaint according to § 793 ZPO , but a simple complaint according to § § 71 ff. GBO is permissible.

Enforcement reminder

In the enforcement reminder procedure, measures by enforcement bodies that relate to the type of enforcement and do not constitute a decision by an enforcement body ( see: immediate complaint) are reprimanded. The enforcement reminder is not only permissible in the event of deficiencies in the procedure to be observed by the bailiff, but also in the case of enforcement measures by other enforcement bodies.

The manner of enforcement proceedings concern:

  • all general requirements for enforcement (application, enforcement title, enforcement clause, service);
  • the time of execution;
  • the place of execution;
  • the manner of enforcement;
  • the scope of enforcement and
  • whether the enforcement body acting is actually responsible or whether the selected type of enforcement is lawful.

There would be no correct time for enforcement acts on Sundays and public holidays. Enforcement would be z. B. in the wrong place, if a bailiff seized an item which is in the (joint) custody of a third party who is not ready to surrender. A bailiff would violate the permissible manner e.g. B. if he entered an apartment against the will of the owner of the house right without the necessary judicial order. The lawful scope of an enforcement would be exceeded if the enforcement body disregarded seizure protection regulations in favor of the enforcement debtor, if z. B. the bailiff would seize non-attachable property due to a monetary claim ( § 811 ZPO) or the enforcement court would entangle wage claims against the employer beyond the permissible extent. The lawfulness of the enforcement procedure would be z. B. concerned if a bailiff seized property accessories, although the execution of the haulage is not applicable. With the enforcement reminder, a refusal by the bailiff to take on an enforcement order can also be reprimanded. The enforcement court decides on the facts presented by the applicant by resolution. An immediate appeal against this decision is possible (not to be confused with an immediate appeal against decisions of an enforcement body).

Third party opposition action

The third party opposition action can be brought by a third party who is neither a creditor nor a debtor if he has a right to an object that has been attached which prevents the sale. The third party objection action is the corrective for the fact that the bailiff only checks the custody of the thing in the case of attachment in accordance with § 808 ZPO, but not any rights that third parties have on it. The same applies to the enforcement court, which does not check who is the owner of a claim when it is attached. In the event of a seizure of a claim that does not belong to the debtor, the seizure is ineffective, but the third party has a need for legal protection that is sufficient for the third party opposition action for legal reasons .

A “right to prevent the sale” is to be understood as a right which would make a sale by the enforcement debtor an unlawful encroachment on the legal system of the third party. An object to which there is a “right to prevent the sale” does not belong to the enforcement debtor's property and is therefore not subject to enforcement in his property. Such a right is primarily the ownership of a third party in the thing or the ownership of a claim, but also the usufruct , the land charge or a mortgage .

Complaint for preferably satisfaction

The action for preferential satisfaction takes place if a third party is entitled to a lien on the thing which does not entitle him to possession ( non- possessory lien) or a preferential right to the thing. Also the action for preferential satisfaction is a corrective for the irrelevance of the legal situation of the thing in the seizure. Such non-possessory liens are the landlord's lien on the tenant's property, the lessor's right of lien on the lessee's property and the fruits of the leased property, the restaurateur's lien on the guest's property and the carrier's right to pledge the property. If the third party sues for preferential satisfaction, he cannot prevent the seizure of the thing on which he has a non-possessory lien or a preferential right. He may only preferentially satisfy himself with the proceeds of the auction or sale in front of other creditors.

Enforcement defense action

The enforcement defense suit or also called an enforcement counterclaim takes place according to § 767 ZPO if the enforcement debtor raises objections and defenses against the titled claim. It is also called the "action for avoidance" of enforcement law. The enforcement defense action is not there to give the enforcement debtor the chance to catch up on means of defense which were not presented or not presented in time at the hearing and are therefore excluded. The reasons on which the objection or objection is based may only have arisen after the oral hearing has ended; otherwise the action is unfounded. With regard to design rights, it is disputed whether the objection is legally relevant at the point in time at which the design right objectively arose (e.g. when the offsetting situation arises) or the point in time when the design right is exercised. The claim titled by judgment is no longer examined in the context of the enforcement defense action, as it is subject to the subjective legal force between the parties . In the case of titles that are not legally binding (enforceable notarial deed), the examination of objections and defenses is not subject to any restrictions. The prerequisites for the claims against which objections or defenses are asserted must also be discussed.

European Union

The judicial cooperation in civil matters within the European Union provides for the facilitation of cross-border enforcement. In the meantime, following the Brussels Enforcement Convention, the EC Regulations VO 44/01, VO 1347/00 and VO 2201/03 have been issued. In connection with the right to a fair trial , in connection with the EC regulation for the introduction of a European enforcement title for undisputed claims (VO 805/04, EuVTVO ), new enforcement questions of a constitutional nature arise .

literature

  • Hans Brox, Wolf-Dietrich Walker: Foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 .
  • Dieter Eickmann, Roland Böttcher: Foreclosure and compulsory administration law. 3. Edition. CH Beck, Munich 2013, ISBN 978-3-406-64623-2 .
  • Hans Gaul, Eberhard Schilken, Ekkehard Becker-Eberhard: Foreclosure law . 12th edition. CH Beck, Munich 2010, ISBN 978-3-406-59515-8 .
  • Bettina Heiderhoff, Frank Skamel: foreclosure law . 3. Edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-9564-7 .
  • Burkhard Hess, Othmar Jauernig, Friedrich Lent: Civil Procedure Law: A Study Book . 30th edition. CH Beck, Munich 2011, ISBN 978-3-406-60680-9 .
  • Wilhelm Jennissen: The European Enforcement Order . In: Insolvency & Enforcement (InVo). Vol. 2006, ISSN  0949-930X , pp. 218-224, pp. 263-271.
  • Rolf Lackmann: Foreclosure law with the basics of bankruptcy law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5497-0 .
  • Hans-Joachim Musielak, Wolfgang Voit: Basic course ZPO . 14th edition. CH Beck, Munich 2018, ISBN 978-3-406-72407-7 .
  • Olaf Muthorst: Basic features of foreclosure law . 3. Edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-5796-1 .
  • Winfried Schuschke, Wolf-Dietrich Walker (Ed.): Enforcement and Provisional Legal Protection: Comment . 6th edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28281-1 .

Web links

Wiktionary: Foreclosure  - explanations of meanings, word origins, synonyms, translations
Wikibooks: The Foreclosure of Claims  - Learning and Teaching Materials

Individual evidence

  1. ↑ Code of Civil Procedure . Eighth book (full text) on wikisource
  2. ↑ Christiane Knabben u. a .: Beck's form book foreclosure . In: Fabian Hasselblatt, Werner Sternal (ed.): A manual of forms not only for creditors and experts, but also debtors and their advisors . CH Beck, Munich 2008, ISBN 978-3-406-55912-9 , p. 1 ff., 267 ff., 305 ff., 395 ff., 773 ff., 1079 ff .
  3. ↑ Page no longer available , search in web archives: Press release on the Internet auction Federal Ministry of Justice@1@ 2Template: Dead Link / www.bmj.de
  4. ↑ Frank-Michael Goebel RiOLG in: Der Rechtsbeistand, Issue 1/2008, p. 2.
  5. ^ Stefan Smid : § 835 . In: Thomas Rauscher , Peter Wax, Joachim Wenzel (Ed.): Munich Commentary on the Code of Civil Procedure . 3. Edition. CH Beck, Munich 2007, Rn. 13.
  6. ↑ Hans Putzo : § 835 . In: Heinz Thomas , Hans Putzo (Ed.): Civil Procedure Code . 32nd edition. CH Beck, Munich 2011, Rn. 4 .; OLG Cologne InVo 2003, p. 398.
  7. ↑ BGHZ 55, 20 . BGHZ 72, 141 (145).
  8. ↑ Hans Brox, Wolf-Dietrich Walker: foreclosure law . 11th edition. Vahlen, Munich 2018, ISBN 978-3-8006-5463-5 , Rn. 1410.
  9. ↑ Peter-Andreas Brand: Current problems in civil law disputes with foreign relevance - jurisdiction, service and enforcement. In: Humboldt Forum Law. (HFR), 22-2007, pp. 9 f., Rn. 29 ff.