Bailiff (Germany)

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The bailiff is an independent organ of enforcement and at the same time an official . The bailiff has the task of judgments and other enforcement to forcibly enforce and (outside of a concrete court) papers deliver . When working as an independent enforcement body, he exercises public authority on his own responsibility and is subject to the supervision of the enforcement court as part of the reminder . Outside of his activity as an independent organ of enforcement (e.g. with regard to the question of organization), the bailiff, as an official, is subject to the supervision of the supervisory district court.

The bailiff is independent in accordance with Section 1 of the Bailiff Regulations insofar as this does not conflict with other principles. The bailiff is z. B. bound to the enforcement request of the obligee due to the disposition maxim applicable in the foreclosure . The obligee determines the beginning, type and extent of the foreclosure. The obligee can also exclude certain items from the attachment. However, the bailiff determines the exact time of an enforcement measure independently. He can also independently decide whether to postpone an enforcement measure according to Section 765a (2) ZPO.

The bailiff runs his own business with his own office and office workers at his own expense as a civil servant of the middle or higher service. There are around 4200 bailiffs in Germany. In 2017 they carried out around 1.3 million seizures and evicted 53,600 apartments.

tasks

The primary task of the bailiff is the recovery of titled monetary claims. There are various possibilities for this, which are named in § 753 ZPO in connection with § 802a ZPO.

First, the bailiff will work towards an amicable settlement according to § 802b ZPO (deferment of payment with the consent of the obligee or installment payments , see § 802b  ZPO ). The bailiff can also use movable property - e.g. B. cash, motor vehicles, jewelery seizure ( seizure of property ). However, he must adhere to the general seizure regulations, in particular to the so-called ban on seizure (§ § 811  ff. ZPO).

According to § 802a ZPO in conjunction with § 807 ZPO, the bailiff can immediately obtain the asset information (formerly an oath of disclosure or affidavit ) from the debtor on site at the request of the obligee if the prerequisite according to § 807 ZPO is met . Due to the law on the reform of the investigation into compulsory enforcement since January 1, 2013, on-site enforcement is no longer required to receive the asset information. Rather, according to Section 802a ZPO in conjunction with Section 802c ZPO , the bailiff can also be commissioned to accept the debtor's financial information in isolation.

A list of the debtor's assets must be created for the asset information . Assets include all physical objects owned by the debtor as well as claims ( Section 802c (2) ZPO). The debtor then has to affirm the correctness of his information in lieu of an oath . The register of assets is then placed in the official enforcement portal. After the debtor has provided the asset information, the bailiff according to § 882c ZPO to create a so-called registration order and is entered in the debtor directory of the respective Central Enforcement Court (ZenVG) ( § 802k ZPO).

The other tasks of the bailiff include, among other things, the eviction of apartments and land, the seizure of exchanges , the execution of child removal, the enforcement of other surrenders and the formal delivery of not necessarily official documents that express a representation described in the law as a declaration of intent.

The bailiff marks seized objects with an affixed pledge seal , formerly called "cuckoo". This meant the eagle printed in the earlier Prussian state seal. Today, only the name "Pfandsiegel" and the name of the local court under whose supervision the bailiff stands are indicated on a pledge seal . The unauthorized removal of such a seal is punishable as breaking a seal in accordance with Section 136 (2) StGB .

When a document is served by the bailiff, a copy of the document with a precise description of when and how or to whom the original was served is sent back to the sender so that the latter can prove the service in a court-proof manner.

Employment, responsibility

The bailiff belongs to the organs of the administration of justice and works in an administrative district assigned to him. In the local courts there are so-called bailiff distribution points, which collect orders from the creditors to the bailiffs in the respective district court district and then assign them to the responsible bailiff. Irrespective of this, the creditor can also contact the responsible bailiff directly. In Germany, “bailiffs” and “ senior judicial officers ” are official designations of civil servants in the middle or higher judicial service (grades A8 to A11). In the federal state of Bavaria, the official designation "main judicial officer" (salary group A11) is also used. A separate employment test must be taken prior to appointment. In addition, he is entitled to part of the fees collected both as remuneration and as compensation for the maintenance of a business room and the payment of his own employees.

Powers

The legal basis of the activity as a bailiff is mainly § 154 Courts Constitution Act (GVG) and the Code of Civil Procedure (ZPO) , e.g. B. § 753 ZPO as well as the Bailiffs Ordinance (GVO) and the business instructions for bailiffs (GVGA). The costs for the activity of the bailiff are usually determined according to the Bailiff Costs Act (GvKostG) ( § 1 paragraph 1 and 2 GvKostG).

To enforce his powers he can use direct coercion up to eviction and arrest against the debtor; he can also avail himself of the administrative assistance of the police .

Legal relationship with the enforcement creditor

The bailiff is commissioned by the enforcement creditor either directly or through the mediation of the so-called bailiff distribution point existing at the local court ( Section 753 , Section 766 (2) ZPO); however, there is no contractual relationship under civil law, but a relationship under public law between him and the creditor.

The bailiff does not act as a representative of the enforcement creditor and also not as his vicarious agent, but sovereignly as an official. It is an independent organ of administration of justice.

literature

  • Urte Nesemann: Bailiff in the past and future . In: Zeitschrift für Zivilprozess (ZZP), 119th volume, 2006, pp. 87-108.
  • Hartmut Glenk: Organs of foreclosure and the execution of foreclosure by the bailiff . In: ZVR - foreclosure law . 4th edition. CH Beck, Munich 2010, ISBN 978-3-423-05587-1 .
  • Hartmut Glenk: Criminal law aspects of the affidavit in the procedure for asset information according to ZPO and AO . In: StraFo - Strafverteidiger Forum , No. 10/2013, p. 413 ff. (With detailed information on the official duties of the bailiff).
  • Hartmut Glenk: Indispensable all sorts - the office and liability of the bailiff . In: NJW - Neue Juristische Wochenschrift , No. 32/2014, pp. 2315–2318.

Individual evidence

  1. ↑ § 154 GVG; § 1 Bailiff Regulations; Munich Commentary on ZPO, § 154 GVG, Rn. 5.
  2. ↑ §§ 29 ff. Bailiffs Ordinance (GVO).
  3. ↑ Maik Großekathöfer: Numbers, please! In: Der Spiegel . No. 42 , 2019, p. 60–64 ( online - October 12, 2019 ).
  4. ↑ GMO 2012 changes in comparison. In: AG Mensch in Württemberg. September 2016, accessed on December 30, 2018 (German).
  5. ↑ Original of the GVGA of the Bavarian State Ministry of Justice. Retrieved from gesetze-bayern.de on September 17, 2018.