Asset information

from Wikipedia, the free encyclopedia

The debtor's asset information is to be given to the bailiff as part of a foreclosure carried out by the creditor against the debtor and serves to provide the creditor with knowledge of the debtor's assets in order to be able to successfully enforce them.

Current legal situation

The asset information is a designation that was introduced by the law on the reform of the investigation of facts in foreclosure with effect from January 1, 2013 for new enforcement orders received from this point in time. It partially corresponds to the obligation to submit a list of assets and an affidavit that the information contained is correct and complete, which is regulated in Section 807 of the old version of the German Code of Civil Procedure . However, the requirements and content are regulated differently.

requirements

According to the new law, the obligation of the debtor to provide asset information exists from the outset if the prerequisites for foreclosure pursuant to Section 802c ZPO are met , if the creditor issues a corresponding order pursuant to Section 802a ZPO. A previous unsuccessful enforcement attempt is not required. If the claim is not paid in full within a payment period of two weeks set by the bailiff , a date will be set for the acceptance of the asset information ( Section 802f (1) ZPO).

If the financial information is requested immediately after an attempted foreclosure, the debtor can object to this immediate issue, unless he is given the due preparation time.

Content of the asset information and procedure

In the asset information , the debtor must state all assets belonging to him and provide additional information specified in Section 802c (2) ZPO. Based on the information provided by the debtor, the bailiff creates the list of assets in accordance with 802f para. 5 sentence 1 ZPO . The debtor then has to take an oath for the record that he has given the information correctly and completely to the best of his knowledge and belief ( Section 802f (5) sentence 2, Section 802c (3) ZPO). The bailiff then deposits the list of assets with the central enforcement court and sends a copy to the creditor ( Section 802f (6) ZPO).

The Federal Court of Justice (BGH) decided in June 2014 on the basis of the old legal situation that the person obliged to submit an affidavit must also obtain the knowledge and documents required for the information - if necessary - from third parties. If the affidavit given by the obligated party gives rise to the assumption, based on additions contained in the declaration , that he has not provided the information previously given by him with the necessary care , the enforcement court may, pursuant to Section 261 (1) BGB, at the request of the The obligee to decide on a change to the affidavit in accordance with the circumstances and order that the debtor corrects his previously incomplete information and affirms the complete information in lieu of an oath .

If other creditors pursue foreclosure against the same debtor, there is no need for a further financial report within the next two years, unless changes in the financial circumstances are made credible. Instead, the bailiff provides the creditor with a copy of the last list of assets submitted ( Section 802d ZPO), which he can retrieve from a centrally managed nationwide file for enforcement purposes ( Section 802k (2) ZPO).

Remedies

Against the obligation to submit the asset information, the debtor is entitled to the remedy of reminder according to § 766 ZPO. The memory has no suspensive effect. However, the debtor can apply to the enforcement court for temporary legal protection.

Consequences of lack of cooperation

If the debtor stays away from the deadline for submitting the asset information without excuse, or if he refuses to submit the information for no reason, a corresponding entry is made in the debtor register . At the request of the obligee, the district court issues an arrest warrant ( Section 802g ). The detention only serves to force the submission of the property report. After they are handed in, the debtor is released from custody. Detention may not exceed six months ( Section 802j (1) ZPO).

Right to inspect the register of assets

Enforcement courts, insolvency courts and registration courts as well as criminal prosecution authorities are also authorized to inspect, insofar as this is necessary to fulfill the tasks incumbent on them ( Section 802k (2) ZPO). The tax office can demand the less drastic submission of a list of assets instead of the property information including an affidavit ( § 249 AO); this has the advantage that there is no report to the Schufa .

deletion

After two years have elapsed since the information was provided, the register of assets will be deleted by the central enforcement court ( Section 802k Paragraph 1 Sentence 3 ZPO).

Old legal situation

According to the old law, the obligee instructed the bailiff to carry out the enforcement of a title . Did the obligee make credible that he could not fully obtain his satisfaction through attachment, or had a distraint not already led to the complete satisfaction of the obligee , or had the debtor refused to search his home or the bailiff repeatedly failed to find the debtor despite the announcement If an apartment was found, a property disclosure (and this is also an affidavit) had to be filed. If the debtor made it credible that he could settle the existing payment obligation within six months, the bailiff could make a payment agreement and postpone the submission date by this period (Section 900 (3), Section 806b ZPO, old version).

Since debtors were often not willing to submit the affidavit voluntarily, the local court issued an arrest warrant at the request of the obligee against a debtor who did not appear on the submission date without an apology or otherwise unjustifiably refused to submit the affidavit (§ 901 ZPO, old version). The arrest warrant was accompanied by permission to forcibly enter the debtor's home and search it for the debtor. In practice, the overwhelming majority of the debtors gave up the insurance after the arrest warrant had been presented, so that the actual transfer to the prison was unnecessary. Actual execution was required in far less than one percent of the arrest warrants issued. The bailiff was able to place the unwilling debtor in a detention center for up to six months (§ 913 ZPO, old version). If the debtor gave up the affidavit, the detention was to be ended immediately. The admissible legal remedy against the issuance of an arrest warrant was an immediate appeal according to § 793 ZPO.

The debtor had to submit a complete list of assets covering all of his assets and to affirm for the record in lieu of oath that he had made the information therein correct and complete to the best of his knowledge and belief (Section 807 (3) ZPO, old version). The bailiff was responsible for the acceptance (§ 900 ZPO old version). The willful or negligent submission of an incorrect declaration in lieu of an oath was punishable by law ( Section 156 of the Criminal Code).

The enforcement creditors were entitled to apply for the acceptance of the affidavit. The inspection was carried out by the bailiff at the district court in whose district the debtor was domiciled. The tax office , according to § 284 AO justified itself, remove the affidavit. The same applies to other administrative authorities (cf. e.g. § 16 VwVG BW).

See also

literature

  • Gregor Vollkommer: The reform of the clarification of facts in the foreclosure - An overview , NJW 2012, p. 3681 ff.
  • Franz Klein : Tax Code: AO . Commentary, 12th edition 2014, § 249 AO. ISBN 978-3-406-65705-4

Web links

Wiktionary: Oath of Revelation  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Basics of asset information. November 30, 2017. Retrieved December 29, 2017 .
  2. BGH, decision of June 12, 2014, Az .: I ZB 37/13 = BGH NJW 2015, 494