The court orders in Germany is a trial which serves to facilitate the enforcement of monetary claims. It is regulated in §§ 688 ff. ZPO and not to be confused with extrajudicial reminders from companies , lawyers or debt collection agencies . The claim must not be dependent on a consideration that has not yet been provided ( Section 688 (2) No. 2 ZPO). Further requirements apply to claims from consumer loan contracts ( Section 688 (2) No. 1, Section 690 (1) No. 3 ZPO).
Upon a corresponding request by the obligee, a so-called dunning notice is issued, which is sent to the alleged debtor by the competent central dunning court. If the debtor does not object to this in due time, the claim becomes enforceable when the central dunning court issues a so-called enforcement order (until 1977 enforcement order ) upon request . The dunning procedure thus enables a monetary claim to be enforced without filing a lawsuit, i.e. without a judgment . The procedure is carried out by a Rechtspfleger or even fully automated, without checking whether the claimant is actually entitled to payment. Evidence does not have to be sent with the machine entry. The dunning procedure is thus a quick and cost-saving alternative to ordinary civil proceedings , which is particularly suitable for claims that are not in dispute. The aim of the procedure is initially to get a debtor to pay. At the end of the dunning procedure, however, there is the enforcement order. This is an enforcement title with which the creditor can enforce his monetary claim ( Section 794 (1) No. 4 ZPO).
The dunning procedure is carried out at the central dunning courts under the responsibility of a judicial officer ( Section 20 No. 1 RPflG). Notwithstanding this, the labor court is responsible for matters of labor law .
In Germany only the automated, central dunning procedure is used. The manual, decentralized procedure at the local district courts is no longer in use. The main difference between the procedures is the application form used.
The local jurisdiction lies with the central dunning court of the federal state in which the applicant is domiciled. For this purpose, every German federal state has named a district court , which carries out the tasks as a central dunning court. The exception here is North Rhine-Westphalia with two central dunning courts : Hagen District Court and Euskirchen District Court . Here, the local jurisdiction of the dunning court (Hagen or Euskirchen) depends on the higher regional court district in which the applicant is domiciled. Some federal states have even joined forces to operate a central dunning court. The federal states of Berlin and Brandenburg (= district court Berlin-Wedding ), Hamburg and Mecklenburg-Western Pomerania (= district court Hamburg-Altona ), Rhineland-Palatinate and Saarland (= district court Mayen ), as well as the federal states of Thuringia, Saxony and Saxony-Anhalt ( = Aschersleben District Court , Staßfurt branch) only one common central dunning court.
Insofar as the labor court is materially responsible , the labor court at which the disputed procedure would also have to be carried out is locally competent, i.e. according to § 46a and § 82 Labor Court Act (ArbGG) the labor court in whose district the company is located.
The dunning procedure is initiated by an application from the obligee to the competent central dunning court. This application can be made at any time. In practice, however, it only makes sense to submit an application if a debtor is in default or the limitation period is to be suspended shortly before the limitation period expires.
The obligee's request for a payment order to be issued is made on a form with the following information:
- Date of application
- Applicant, if necessary with legal representative, in the case of companies and legal persons, information on the form of business, information on the right to input tax deduction
- Defendant, if necessary with legal representative, in the case of companies and legal persons, indication of the form of business
- exact description of the claim with specification of the monetary claim
- possibly interest on the main claim
- if necessary ancillary claims
- whether and, if so, before which court should a controversial procedure be carried out in the event of an objection / objection
- Address of the competent central dunning court
- If applicable, details of the applicant's legal representative, file number there
A web form offered by the judiciary can also be used to submit an application.
Official forms are available in stationery shops. Instructions for completing the application are attached to the forms. In matters of labor law, a separate form is used for the dunning request. This is available from every labor court.
Application via barcode procedure
In the barcode procedure, it is possible to fill out the application for the dunning notice on the website of the Central Dunning Court. There is an automatic control of input errors and the conclusiveness of the inputs. After entering the data, the application can be printed out on normal, white printer paper. On the last page, the data is printed out coded in a barcode. The application must be signed. Afterwards, all the printed pages are firmly linked and sent by post to the central dunning court. Transmission by fax is excluded, as the quality of a fax is insufficient for error-free scanning.
Application by data carrier
Suitable dunning software and an identification number are required here. The code is free and can be requested from the responsible dunning court. A SEPA direct debit can be issued for the entire procedure for applications that are transmitted by data carrier; however, this is not absolutely necessary as the fees can also be paid by bank transfer. The advantage of this procedure is that several applications can be transferred in one file and processing takes place on the day of receipt. Depending on the degree of expansion of the software used, the applicant receives the messages from the court back in the data carrier exchange. The follow-up applications can then also be made in this way.
A code number can be requested in writing from the responsible central dunning court using the automated procedure . When using an identification number, it is no longer necessary to enter the entire applicant / legal representative; instead, it is sufficient to specify the identification number in the corresponding area. The data stored in the code is saved by the dunning court and is automatically included in the dunning notice and the enforcement notice. The dunning procedure is very formalized and largely automated. The application for a code number can be submitted informally to the competent central dunning court. To simplify matters, application forms are available at the dunning courts.
Since December 1, 2008, the application for the issuance of a dunning notice can be sent to the Central Dunning Court in a machine-readable form if this form appears to the court to be suitable for its machine processing. If the application is made by a lawyer or a debt collection agency, only this form of application is permitted. This is a new regulation as a result of the 2nd Justice Modernization Act.
Application via online dunning request
There is also the option of creating an online dunning request via the website online-mahnmeldung.de and sending it to the respective dunning court via the Internet.
The follow-up applications are now also available online there (objection, application for an enforcement order, etc.).
Transmission over the Internet
Since May 16, 2007, the transfer has been made via EGVP (electronic court and administrative mailbox). Further requirements are software that creates the application in the prescribed file format, a suitable card reader and a signature card that complies with the German Signature Act .
The transmission routes have now also been expanded here.
Limited examination by the dunning court
The relevant district court (central dunning court) checks the application for formal correctness and whether the assertion of the claim in the dunning procedure is permissible. The application itself does not contain any justification. The dunning court will return any evidence sent with it without review. After the formal examination, the dunning court issues the dunning notice.
The Rechtspfleger only has limited review competence with regard to the justification. He must not create a false title with sight. He also has to pay attention to whether the asserted claim is sufficiently individualized, whether it can exist at all and whether it is not clearly unjustified. One reason for a complaint is the demand for a writing fee that exceeds the actual costs. Here, for example, the working time for drawing up the dunning notice must not be included, as the latter is part of the normal business activity of a creditor. A complaint can easily delay the delivery of the dunning notice by two weeks, so you should absolutely adhere to the formal correctness.
Delivery of the payment order
Immediately after issuing the dunning notice, the respective central dunning court arranges for it to be delivered to the respondent by mail delivery order . A Public notification ( § 185 ZPO) is not possible with payment orders. Therefore, the applicant must have a serviceable address of the debtor when submitting the application. However, a public service of the later enforcement order is possible. After the payment order has been delivered, the applicant will be informed of this by the central dunning court. The delivery date primarily serves as information for the applicant as to when, if the debtor (= respondent) does not file an objection, he can submit an application for an enforcement order to the dunning court (two-week period, see section Enforcement order).
According to § 34 i. V. m. No. 1100 KV GKG half a court fee (fee rate 0.5), for example:
- Up to 1000 €: 32.00 € - minimum fee
- Up to 1500 €: 35.50 €
- Up to 2000 €: 44.50 €
They arise as soon as the application is received. The payment order should only be issued if the court costs have been paid. If the payment order is issued automatically, this only applies to the enforcement order. This means that in most cases the cost accounting to the creditor and the formal delivery of the payment order take place at the same time.
A lawyer receives a 1.0 procedural fee for applying for a payment order in accordance with No. 3305 VV RVG. Half of a business fee already incurred according to No. 2300 VV will be offset against it, however, at a maximum rate of 0.75. In principle, a 0.5 procedural fee according to No. 3308 VV RVG arises for applying for the enforcement order. As always, there are expenses, especially for post and telecommunications, as well as sales tax.
A debt collection company receives a procedural fee of EUR 25 in accordance with Section 4 (4) RDGEG for applying for a dunning notice.
A later withdrawal of the application does not release the applicant from the obligation to pay the court costs and the costs of a lawyer appointed by him.
The costs are added directly to the main claim and must be borne by the debtor if he does not raise an objection.
Legal remedy against the payment order
After receiving the order for payment, the alleged debtor has the opportunity to object to it. There is no legally standardized deadline for this. However, in accordance with Section 692, Paragraph 1, No. 3 of the German Code of Civil Procedure (ZPO), the dunning notice contains the request to inform the Central Dunning Court within two weeks of delivery whether and to what extent the asserted claim is contradicted. In any case, an objection can only be raised until an enforcement order has been issued. A late objection is treated as an objection to the enforcement order ( Section 694 (2) sentence 1 ZPO). In practice, this means that the creditor usually applies for an enforcement order as soon as possible, i.e. on the 15th day after the debtor receives the order for payment. If the 14th day after receipt of the dunning notice falls on a Saturday, Sunday or public holiday, the objection period ends on the following working day. In practice, the central dunning court sends the creditor a form for filing an application, as well as information on when the dunning notice was formally served.
Application / Decree
If the respondent has not raised an objection to the order for payment and has not paid the creditor's claim, the district court / dunning court ( Section 699 (1) ZPO) can issue an enforcement order on the basis of the uncontested payment order (or its part that is not contested) at the request of the creditor ) issued. The application for this may be submitted no earlier than two weeks after delivery of the payment order (date of receipt by the dunning court) and must be received by the responsible central dunning court no later than six months after this delivery ( Section 701 ZPO). It must contain the declaration as to whether and which payments have been made in the meantime for the claim asserted by the dunning notice.
The enforcement order issued by the local court (dunning court) is equivalent to a default judgment declared provisionally enforceable . Foreclosure can thus be carried out immediately from it , even if the debtor still objects to the enforcement order.
The enforcement order is either sent automatically (“ex officio”) to the respondent by the central dunning court or by a bailiff appointed by the creditor . The latter can save time, as the bailiff can carry out the foreclosure at the same time . Unless otherwise stated, delivery will be made to the address given in the dunning notice.
Appeal against the enforcement order
The respondent can appeal against the enforcement order within two weeks . If that does not happen, the enforcement order becomes final . From this point on, the respondent can only defend himself against the claim in exceptional cases ( e.g. if the applicant is guilty of malice ), even if it is actually unjustified. If an objection is filed in good time, civil proceedings usually follow to clarify the claim. Regardless of this, however, the obligee has the option of collecting the claim with foreclosure measures. Immediate foreclosure can be averted if, in addition to the objection, a separate “application for temporary suspension of foreclosure” is made. Such an application is usually only granted if a security deposit is provided.
If the alleged debtor objects before issuing an enforcement order, most surely within the 2-week period after delivery of the order for payment, the dunning procedure will be passed on to the court responsible for the legal dispute (litigation court) after payment of the additional court costs (litigation court), which will consider the matter as normal Cognitive process continues.
In the event of an objection to the order for payment, this only happens at the request of the creditor or debtor (in practice, the notification of the dunning court about the objection by the debtor contains the information that "the payment of the costs of the litigation is also regarded as an application.")
In the event of an objection to the enforcement order, the matter is submitted ex officio to the trial court in accordance with Section 700 (3) ZPO .
The legal dispute is only considered pending when the files are received by the court to which they are submitted. This can lead to the peculiarity here that the point in time of lis pendens , if this already occurs with the delivery of the order for payment before which the pendency occurs (under the conditions of Section 696 (3) ZPO) .
The object of the proceedings is initially to check the admissibility of the objection. If the objection is admissible, the court examines whether the claim asserted with the enforcement order is justified. For this purpose, the applicant must submit a statement of grounds, the content of which corresponds to a normal application .
Suspension of the statute of limitations
Even the receipt of the application for the issuance of a payment order by the court inhibits according to. § 167 ZPO the statute of limitations if the delivery takes place soon. In this context, according to the case law, the question of whether the delay in judicial business operations or the behavior of the applicant (incorrect address, late payment of advance fees, etc.) is decisive is more important after about a month is.
Document, check and bill of exchange dunning procedures
These special types of procedure are regulated in § 703a ZPO. They are used if the procedural assertion of the main claim in the document , check or bill of exchange process would be permissible.
The procedure does not differ from that of a regular dunning procedure; in particular, it is not necessary to present the respective document. The designation in the application as a document, check or bill of exchange dunning procedure only means that, in the event of an objection, the disputed procedure is automatically also pending in the respective type of process, which can enable an enforcement title to be obtained more quickly .
Claims from documents, checks or bills of exchange can of course also be asserted in the regular dunning procedure, in the event of an objection, however, the disputed procedure will then also be pending as a regular civil process (with all the associated disadvantages).
If, on the other hand, a normal claim is accidentally asserted in one of these types of proceedings, the automatic transition to the corresponding process leads to a (chargeable) dismissal of the complaint as "not permitted in the selected type of procedure".
Bypassing approval offices
A dunning procedure can also circumvent the out-of-court settlement of disputes required in some federal states ( Bavaria , Brandenburg , Hesse , Saarland , Saxony-Anhalt ) for proceedings with a low amount in dispute ( Section 15a (2) No. 5 EGZPO ). In North Rhine-Westphalia (from January 1, 2008) in the local Quality and Conciliation Act (GüSchlG NRW) and in Saxony-Anhalt (from January 1, 2009), the mandatory out-of-court dispute resolution was introduced there initially for such proceedings with a value in dispute up to at € 600.00 had already been abolished. In practice, dunning procedures take place very often for these reasons: Four out of five enforcement of claims, in which an out-of-court dispute settlement would be required by state law due to a low value in dispute, are initiated with a judicial dunning procedure.
Former name of order to pay
Until 1977, the court order was officially in Germany for payment called.
Designation in Austria
In Austria the name differs. There, as part of the mandatory dunning procedure, a so-called conditional payment order is issued by the court at the request of the obligee, as long as the claim does not exceed an amount of € 75,000.00.
European order for payment
With Regulation (EC) No. 1896/2006 of the European Parliament and of the Council of December 12, 2006 (EuMahnVO), a European order for payment procedure was also introduced. The EuMahnVO applies in all member states of the European Union , with the exception of Denmark . This is intended to simplify the recovery of claims against debtors who are resident in another EU member state. The district court of Berlin-Wedding is responsible for an applicant residing in Germany . This is not only the central dunning court for the federal states of Berlin and Brandenburg (concerning the national German dunning procedure). Rather, in the course of the introduction of the European dunning procedure , the Berlin-Wedding district court was also designated as the European dunning court in Germany .
Instead of the expression “order for payment”, which is issued in Germany in the national order for payment procedure, the expression “order for payment” or “European order for payment” is officially used in connection with the European order for payment procedure.
Special forms have been developed for the application for a European order for payment, the use of which is compulsory. If the applicant does not use these forms, there is a procedural deficiency which leads to the rejection of the application (Article 11, Paragraph 1, Point a) EuMahnVO). The application for a European order for payment can be completed online. This must then be sent by post to the responsible European dunning court. An online application is not yet possible, but the form is available on the Internet to fill out and print out.
The European order for payment procedure is similar to the national order for payment procedure. However, with the European order for payment procedure, the objection period is 30 days. In contrast, there is no enforcement order in between. Rather, the order for payment becomes legally binding and enforceable (i.e. the dunning court issues a corresponding payment title), unless the debtor objects to it within 30 days. The issued payment title can then be enforced by the obligee against the debtor by means of foreclosure ; it is recognized in the other member states.
- There are debt enforcement offices in Switzerland. Everyone is free to initiate an enforcement action at the office responsible for the respective case (usually the debtor's seat or the location of the disputed property) without proof of the claim . The procedure is federally regulated in the Debt Collection and Bankruptcy Act (SchKG).
- Debt collection proceedings in Liechtenstein .
- Hans-Joachim Musielak : Basic course ZPO. 10th, revised edition. Munich 2010, ISBN 978-3-406-60107-1 , p. 388 ff = Rn 612 ff.
- Rainer Oberheim: Civil procedure law for trainee lawyers. 6th, revised edition. Werner, Düsseldorf 2004, ISBN 3-8041-2841-6
- Uwe Salten, Karsten Gräve: Judicial dunning proceedings and foreclosure. 6th edition. Schmidt, Cologne 2016, ISBN 978-3-504-47954-1 .
- Bartosz Sujecki: dunning procedure. With electronic and European dunning procedures. Tips and tactics. Müller, Heidelberg et al. 2007, ISBN 978-3-8114-3410-3
- ↑ Official website of the German dunning courts with a list of the individual central dunning courts ( Memento of the original dated February 13, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Application for the issuance of a dunning notice via post or via the Internet (EGPV-signed) online-mahnfrage.de
- ↑ mahngerichte.de
- ^ Wedding District Court - Course of the judicial dunning procedure. In: www.berlin.de/sen/justiz/. Berlin Justice / Consumer Protection, archived from the original on April 16, 2014 ; Retrieved June 26, 2015 .
- ↑ Constitutional complaint about the constitutionality of § 4 Paragraph 4 RDGEG. Accessed on November 18, 2015.
- ↑ acknowledgment constitutional complaint Federal Constitutional Court in Karlsruhe, file number 1 BvR 2679/14 Accessed November 18, 2015.
- ↑ Law on the recognition of quality bodies within the meaning of Section 794, Paragraph 1, No. 1 of the Code of Civil Procedure and the mandatory out-of-court dispute settlement in North Rhine-Westphalia (Quality and Conciliation Act - GüSchlG NRW)
- ↑ Order to pay - Legal Lexicon. Retrieved June 24, 2020 .
- ↑ Summary of EU legislation - European order for payment procedure
- ↑ Compulsory form when applying for a European order for payment
- ↑ Application for a European order for payment - Form A ( Memento of March 29, 2015 in the Internet Archive )
- ↑ Application forms for a European order for payment