Declaration of powerlessness (Germany)
As cancellation (obsolete amortization or cassation ) is referred to in the Securities Law and the Law of Voluntary Jurisdiction Germany to establish the invalidity of a certificate or other object by a person empowered institution often a court . It usually stands at the end of a public notice procedure . Each state regulates its structure by law.
Declarations of powerlessness have already been made in earlier times. There is a public announcement in the Viennese city books from March 1st, 1404 that documents bearing the lost seal of the city clerk Ulrich Herwart are invalid after the deadline. A confirmation issued by Duke Leopold IV on April 28, 1409 should also be mentioned that a lost seal of the brothers Konrad and Wolfgang Potinger, which had been affixed to money letters, would lose its effectiveness after the deadline.
Declaration of powerlessness has always been a sovereign act .
Examples and occasion
A cause for a declaration of invalidation is given in the case of papers which the entitled person has lost, accidentally destroyed by him or which can no longer be found. With the declaration of nullity, the rights specified in the certificate can be asserted by the entitled person without submitting this certificate or, which is the normal case, the issue of a new certificate can be requested.
Such documents include effective pieces of securities (such as shares or bonds ). In addition, untraceable could save (cash) books , insurance policies , certificates of inheritance , mortgage bonds or similar valuable documents subject to a cancellation of his. In connection with it, fees and reimbursement of expenses may apply.
A right evidenced in a paper does not expire with the loss or destruction of the document. However, the beneficiary has difficulties in presenting his claim. A lost certificate also harbors the risk that an unauthorized holder could gain advantages and, for example, get money by redeeming the certificate. This can be prevented by a declaration of invalidation. With it, the previous unity of law and paper falls apart. The previous document loses its legitimacy effect if it appears later. A bona fide acquisition of the rights named in it is ruled out after a declaration of nullity.
In Germany, declarations of nullity are primarily entrusted to the courts . The law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG) , which has been in force since September 1, 2009, regulates the provisions for the invalidation of documents in § ff. FamFG. After the notice period has expired, the court will pass an exclusion resolution ( ) and declare the non-existent document to be invalid. The applicant is thus entitled to exercise rights from the document against the party obliged by the document.
Someone whose insurance policy has disappeared may also have to turn to the court. In accordance with(3) VVG, the policyholder can demand that the insurer issue a replacement certificate if the paper is lost or destroyed. If the insurance policy is invalidated, the insurer is only obliged to issue it after it has been declared invalid.
In a few special cases there are other institutions that have been given appropriate powers by the federal or state legislature. This applies, for example, to the savings banks , which according to state law are allowed to declare savings bank books to be invalid. If the possible owner of a lost or lost savings bank book does not make any claims by submitting the certificate during the notice period, the board of directors decides on the invalidity. The decision will be announced in the institute's bulletin for savings bank books that have been declared invalid.
The Corporation Act authorized in AktG the Executive Board of the corporation inaccurate become shares with judicial authorization powerless to explain. A second situation is the implementation of the reduction in the share capital when shares are merged by exchange, cancellation or a similar process. According to AktG, those shareholders who do not submit their shares despite being requested to do so are threatened with annulment.
Finally, in the case of securities adjustment, the German legislature itself used the means of annulment, so im
- Law on the redemption of public bonds of July 16, 1925 (RGBl. I 1925, p. 137)
- Law to clean up the securities industry of August 19, 1949 (WiGBl., P. 295) with effect from October 1, 1949
- Federal Law Gazette I, p. 2624 ). the law on compensation according to the law regulating unresolved property issues and state compensation payments for expropriations based on occupation law or occupation sovereignty (Compensation and Compensation Act - EALG) of September 27, 1994 (
- Peter Jäggi : The invalidation of securities. Lecture from September 26, 1954. In: Peter Jäggi .: Private Law and State. Collected Essays. Edited by Peter Gauch and Bernhard Schnyder . Schulthess, Zurich 1976, ISBN 3-7255-1777-0 , p. 437 ff. ( Online ; PDF; 76 kB).
- Literature on invalidation in the catalog of the German National Library
- Amortization . In: Meyers Konversations-Lexikon . 4th edition. Volume 1, Verlag des Bibliographisches Institut, Leipzig / Vienna 1885–1892, p. 497.
- Wilhelm Brauneder , Gerhard Jaritz, Christian Neschwara (eds.): The Vienna City Books 1395-1430. Part 2: 1401-1405. Böhlau, 1998, ISBN 3-205-98972-4 , p. 210, accessed on July 30, 2011.
- Gerhard Jaritz, Christian Neschwara (Ed.): The Vienna City Books 1395-1430. Part 3: 1406-1411. Böhlau, 2006, ISBN 3-205-77391-8 , p. 269, accessed on July 30, 2011.
- See example in the official gazette for Frankfurt am Main. Number 27, July 5, 2011, p. 752. ( Memento from December 15, 2011 in the Internet Archive ) (PDF file; 1.3 MB)
- See example in the official gazette for the Cologne administrative region. Number 18, May 2, 2011, p. 130. ( Memento from December 15, 2011 in the Internet Archive ) (PDF file)
- finanz-lexikon.de: Sparbuch
- See example of declarations of nullity by Sparkasse Uckermark in the official gazette for the district of Uckermark. September 28, 2005 ( memento of August 16, 2017 in the Internet Archive ) accessed on July 30, 2011.