Exclusion suit
The excision action (excision - extinction, annihilation), also referred to as third party objection action or segregation action, is open to people who want to assert their own right to an object attached to a debtor (Section 37 (1) EO ).
Scope and content of the lawsuit
The execution (Germany: act of attachment ) in the debtor's assets is basically based on the external appearance and the assumption ( fiction ) that the debtor is also the owner of the objects located with him.
Example: A notebook is attached. The true owner argues that the repossessed by the debtor laptop only at these awarded was. The true owner is therefore someone other than the debtor, who is entitled to the action against the execution, since other things cannot be seized in favor of someone else without the consent of the owner. If such a stray execution nevertheless takes place, the real owner must be entitled to an appeal against it. This is the lawsuit for excommunication.
The obligation to assert the rights to a thing rests with the person who asserts the right. The burden of proof for the true ownership or claims against the debtor, which allow an excision, bears the person who brings the action. Those entitled to take legal action are, for example: the landlord , lender , co-owner , conditional owner , security owner, family member as the owner of a thing, a trustee . The defendant is usually the creditor in charge, sometimes also the debtor. A claim can also be made against both defendants (Section 37 (2) EO - Disputes Association ). The action can be brought as soon as the object of execution has been determined after pending court proceedings. If the action is upheld, the execution of the matter is to be stopped ex officio (Section 37 (4) EO).
The court at which the execution was requested in the first instance or the execution court is responsible for the action for excommunication, depending on whether it is brought " before or after the start of execution, or the execution court " (Section 37 (3) EO).
Liechtenstein
The excommunication procedure was adopted ( received ) from Austria almost word for word in the Liechtenstein enforcement order (Art 20 EO ) and referred to as the "objection (excision) procedure".
See also
- Germany : third party action
- Swiss debt collection and bankruptcy law , Art 106 ff SchKG.
literature
- Walter H. Rechberger, Paul Oberhammer: Execution right . 5th edition. Facultas Verlag, Vienna 2009, ISBN 978-3-7089-0381-1 .
