Complaint for preferably satisfaction

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The action for preferential satisfaction (also called preferential action ) is a procedural structural action from the area of enforcement law according to § 805 ZPO .

Standard purpose and scope

With the action for preferential satisfaction , the enforcement creditor asserts his right to preferential satisfaction from a seizure . You may only take place due to an outstanding debt to a chattel (movable property) and only the pledgee a priority possessory lien reserve the right to foreclosure. The aim of the lawsuit is thus the advance satisfaction from the net proceeds of the realization of the pledge because of a higher-ranking (but at least equal) pledge or preferential right, which corresponds to the legal valuation for subordinate pledges contained in Section 1232 (2) BGB . The action for preferential satisfaction is justified if the plaintiff is actually entitled to the overriding (but at least equal) lien and preferential right to the attached movable property.

In principle, three cases can be considered as liens in this sense:

The person who claims the lien and the preferential right has the active legitimation for the action. The sued is the creditor is done for the attachment (process parties ). The attachment debtor no longer needs to be sued. However, the debtor contradict an order vesting the mortgage proceeds, so must the bailiff deposit the proceeds. The third party can therefore combine with his suit for preferential satisfaction against the enforcement creditor with a declaratory action or suit for toleration of compulsory enforcement (also: suit for toleration of satisfaction from the proceeds ) against the enforcement debtor, since he has objected to the payment. Enforcement creditors and enforcement debtors are so-called simple comrades-in-arms ( Section 805 (3) in conjunction with Section 61 of the ZPO).

example

Tenant M has rented an apartment from landlord V. With the lease, V has a landlord's lien on the things M brought into the apartment. The legal basis of the landlord's lien are §§ 562 ff. BGB . If, for example, M does not pay the rent due, V may prevent the removal of M's property and take possession of it when M moves out. Since V basically has no direct access to M's things, he has a so-called non- possessory lien. If M now owes money to the obligee G from another legal relationship (purchase contract, or similar), G can have his claim titled and enforce the foreclosure of a lien on M's assets. Now, in addition to the landlord's lien, there is also the seizure of objects in favor of G. Since G carries out foreclosure immediately, V only has the advance satisfaction from the proceeds. The law makes it easier for V to assert its rights, since the due date of the rent claim (as a secured claim) is not taken into account.

Differentiation from other legal remedies

In contrast to the so-called third party objection suit (according to § 771 ZPO) or the enforcement counterclaim (according to § 767 ZPO), the action for preferential satisfaction is not a right of intervention. It cannot prevent foreclosure, only the consideration of a priority right to the proceeds. In this respect, it represents a “minus” compared to the third party objection suit. According to the prevailing opinion, pledge creditors who are entitled to object can therefore also file preferential suits instead of the third party objection suit.

However, the deposit of the proceeds can be enforced by means of provisional legal protection .

Need for legal protection

The action for preferential satisfaction is admissible if there is a priority right to satisfaction and the enforcement of the attachment has started, is still valid and has not been completed. The need for legal protection exists when the goal cannot be reached in a cheaper or easier way, e.g. B. Section 766 ZPO and solely for the period from the seizure to the payment of the proceeds to the creditor. Once this period has elapsed, claims based on enrichment law can lead to the goal. If the requirements are met, claims for damages can also be considered.

In return, however, the hM denies the need for legal protection if, when an action is brought for preferential satisfaction, the priority of one's own lien over another lien is asserted. The fact that such a claim is denied is based on the fact that the priority of the distribution procedure according to Section 872 ZPO applies. For the rest, priority or pari passu over the defendant's lien is required. The hierarchy between the lien and the preferential right is based on § 804 ZPO. The priority principle applies within a group , Section 804 (3) ZPO.

The need for legal protection is also absent if the pledgee has consented to the bailiff in paying out the proceeds from the sale to the attaching creditor.

Claim

The claim is aimed at satisfying the plaintiff from the net proceeds of the attached item up to the amount of a specifically quantifiable claim from the defendant.

Individual evidence

  1. ↑ Alexander Bruns / Fritz Baur / Rolf Stürner, Zwangsvollstreckungsrecht , 2006, p. 563
  2. ↑ Sabine Jungbauer / Waltraud Okon, Mobiliarzwangsvollstreckung , 2006, p. 266
  3. ↑ MünchKomm ZPO / Schilken, § 805 No. 24
  4. ↑ Alexander Bruns / Fritz Baur / Rolf Stürner, Zwangsvollstreckungsrecht , 2006, p. 563
  5. ↑ Brox / Walker, JA 1987, 57 f.
  6. ↑ MünchKomm ZPO / Schilken, § 805 No. 1, 3, 11
  7. ↑ RGZ 119, 265 (269)
  8. ↑ cf. Hk-ZPO / Kemper, § 805 Rn. 6th
  9. ↑ MünchKomm ZPO / Schilken, § 805 No. 22nd

Web links

Wikibooks: Law of civil procedure in the 2nd state examination: action for preferential satisfaction  - learning and teaching materials

Literature / comments