Real arrest

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The arrest in rem is an instrument of interim legal protection to secure enforcement of a monetary claim or a claim that can turn into a monetary claim. It can be applied for at a point in time at which there is no enforcement title , if there are concerns that without its order the enforcement of the title would be thwarted or made significantly more difficult.

Code of Civil Procedure

The real arrest serves to secure the enforcement of a monetary claim or a claim that can turn into a monetary claim. Any property claim can turn into a monetary claim by turning into a monetary claim for damages in the event of non-fulfillment .

Formally, the attachment in rem requires a request for attachment that contains the monetary amount or the monetary value of the claim and the reason for the attachment ( Section 917 ZPO). Both must be made credible (exceptionally not in accordance with § 921 ZPO if there is a risk of significant disadvantages and security is provided). The arrest court is responsible according to Section 919 ZPO.

A reason for arrest is acc. Section 917 (2) sentence 1 ZPO presumes if the judgment would have to be enforced abroad and reciprocity is not guaranteed. With Regulation (EU) No. 1215/2012 (Brussels Ia) , however, the procedure for declaring foreign titles to be enforceable ( exequatur procedure ) has been abolished in the European Union . Since January 10, 2015, decisions by national courts have been recognized and enforced in all other member states under European civil procedure law.

Another typical reason for arrest is the waste of assets, for example in the case of gambling addiction.

If the application for attachment is negotiated orally, the decision is made by judgment , otherwise by resolution .

With an arrest order by the court, the arrest execution can be pursued according to § § 928  ff. ZPO. The enforcement of movable property and claims is effected by seizure by the bailiff , the enforcement of a property by entering an attachment mortgage ( § 932 ZPO).

A legal remedy or legal remedy of the debtor against the order of attachment is the objection if the order of attachment was issued by resolution, otherwise the appeal . A revision is not permitted, Section 542 (2) sentence 1 ZPO.

If the future foreclosure is endangered by the personal conduct of the debtor, personal arrest can be ordered.

Code of Criminal Procedure

The criminal procedural property arrest is an investigative measure to secure the collection of compensation or the enforcement of a fine or the costs of the criminal proceedings. In order to secure the enforcement costs, however, an arrest is inadmissible ( Section 111e Paragraphs 1 to 3 StPO). The execution of the arrest can be averted by deposit (§ 111e Abs. 4, § 111g StPO).

Until the law reforming the criminal asset recovery came into force on July 1, 2017, the German Code of Criminal Procedure regulated the possibility of an in rem arrest in Section 111d StPO a. F. Since then, the institute has been referred to as property arrest and is regulated in § 111e StPO. The criminal procedural arrest of assets also presupposes a need for security, which is given if there is concern that future enforcement will be thwarted or made significantly more difficult without an arrest being ordered.

The arrest of assets is usually ordered by the court, and in the case of imminent danger also by the public prosecutor's office ( Section 111j StPO). Asset arrest is carried out by attaching a movable item or a claim, in the case of immovable items by entering a security mortgage ( § 111f StPO). According to § 111k StPO the public prosecutor. The execution results in a sale prohibition within the meaning of § 136 BGB ( § 111h StPO).

Tax Code

The German Tax Code provides for the possibility of a real arrest in § 324 AO by the tax authorities the right to prevent the recovery of public money receivable from the tax debt ratio thwarted or substantially more difficult. It is carried out by the enforcement authority and enforcement officers in accordance with the arrest in rem in accordance with the Code of Civil Procedure (Section 324 (3) sentence 4 AO, Section 930 to Section 932 ZPO). Upon deposit , the execution of the arrest is suspended or the executed arrest is lifted (Section 324 (1) sentence 3 AO). In criminal tax proceedings, the two security instruments of asset arrest according to the Code of Criminal Procedure and tax attachment according to Section 324 of the Tax Code are equally important ( Section 111e (6) of the Code of Criminal Procedure).

Individual evidence

  1. ^ Lecture ZPO II. Part II: Temporary legal protection at the University of Würzburg (no year), accessed on September 26, 2019
  2. ↑ Peter Mock: Acceleration of Enforcement: The arrest as a security measure for the untitled creditor Enforcement effective - issue 05/2001, p. 62
  3. ↑ cf. Section 153 GVGA
  4. ↑ § 111d StPO old version (old version) in the version valid before July 1, 2017 buzer.de, accessed on September 25, 2019
  5. ↑ Günther Hurlebaus: Overview of the new regulation of the criminal asset recovery from July 1, 2017 May 8, 2017
  6. ↑ Andrea Kämper: Schwarz / Pahlke, AO § 324 Dinglicher Arrest / 2.2.1 Arrestansendung Haufe.de, accessed on September 25, 2019
  7. ↑ OLG Stuttgart, decision of October 25, 2017 - 1 Ws 163/17
  8. ^ LG Hamburg, decision of May 16, 2018 - 618 Qs 14/18