Clause procedure

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In German civil procedure law, the clause procedure serves to prepare for enforcement . The legal basis is § § 723 ff. ZPO . Thereafter, the creditor is to be given an enforceable copy (clause) of the title on his (informal) application to the trial court . In addition to the title, the request of the obligee and the delivery of the title to the debtor, this is a regular requirement for foreclosure.

Sense and purpose

The background to the clause issuing procedure is primarily the formalization of the foreclosure: the enforcement body should be able to rely solely on the titled claim and should not have to carry out extensive and legally difficult tests. It only checks the formal requirements of the enforcement measure and its admissibility, but not the (material) legality of the title. This is confirmed by the "label" enforcement clause. The clause is therefore also seen as a "bridge" between the judgment and enforcement proceedings.

Enforcement Clause

The clause reads according to 725 ZPO as a rule:

The above copy is given to the (name of the party) for the purpose of enforcement.
Name of the court, date, signature of the clerk, seal

A distinction must be made between the simple clause and the qualified clauses (title-supplementing and title-transferring clause). Requirements for the issuance of a simple clause are:

  • Enforceable title
  • Application from the enforcement creditor
  • Failure to meet the special requirements of Section 726 (condition for commencement of enforcement) or Section 727 ZPO (lack of party identity)

If the special requirements of § 726 ZPO are met, the Rechtspfleger provides grds. a title supplementary clause . If party identity is not given, the Rechtspfleger provides grds. a title transferring clause (= title rewriting clause ).

In order to avoid multiple enforcements, only one enforceable copy is regularly issued, § 733 ZPO. If this should be lost, the creditor, if he makes the loss credible, can be given another enforceable copy. Another enforceable copy can also be issued if several enforcement measures are promptly required at different locations, but in particular against several debtors named in the title. There is no further enforceable copy if a new copy is issued against the return of the old enforceable copy (e.g. due to damage / aging of the paper / illegibility).

Jurisdiction

As a rule

As a rule (simple clause) the clerk of the registry is responsible for issuing the clause. If a title-supplementing clause, § 726 ZPO, or a title-transferring clause, § 727 ZPO, comes into consideration in individual cases , then according to § 20 No. 12 RPflG the Rechtspfleger is responsible for the decision on the granting of the clause. This also applies to other enforceable copies.

Competence in the case of revocation settlement

The clerk of the registry is responsible for issuing the enforcement clause for a revocation settlement ( § 795b ZPO).

This provision was introduced into the Code of Civil Procedure on December 22nd, 2006, after the entry into force of this code in 1879 to 2002, i.e. well over 100 years, this jurisdiction without any legal regulation was never disputed. Only the Federal Labor Court (BAG) decided at the end of 2003 that the Rechtspfleger had to issue this enforcement clause. The civil litigation opposed this decision and its reasons. In an unsubstantiated decision, the Federal Court of Justice (BGH) subsequently joined the Federal Labor Court.

The newly introduced provision of § 795b ZPO thus restores the legal status that has been in place for well over a hundred years, according to which the clerk of the office is responsible for issuing the enforcement clause for a revocation settlement.

Remedies

Against the issuance of the clause, the debtor can appeal the reminder of the clause , § 732 ZPO, on which the judgment court of first instance decides. The debtor can also proceed against the issuance of the clause with the counterclaim according to § 768 ZPO. If the creditor is not able to provide the necessary evidence of the facts to be proven in the case of the qualified clauses, he can assert the grant in court by means of the clause granting action ( § 731 ZPO). In this case, the evidence is not limited to public or publicly certified documents.

costs

The costs of the clause procedure are acc. § 788 ZPO counted towards the costs of the foreclosure in order to avoid the otherwise necessary title.

literature

Individual evidence

  1. ↑ BAG NJW 2004, 701.
  2. ↑ Sauer / Meiendresch, revocation comparison and issue of enforcement , NJW 2004, the 2870th
  3. ↑ BGH NJW 2006, 776.