Personal arrest
The personal arrest is an instrument of the temporary relief and help to maintain the execution because of an outstanding debt or a claim , which may pass into a money demand ( § 916 ZPO).
Grounds for arrest
According to § 918 ZPO, personal arrest may only be ordered if it is necessary to secure the foreclosure against the debtor's assets that is endangered by the personal conduct of the debtor. It is therefore subsidiary to arrest in rem and practically rare.
Two grounds for arrest are recognized in the case law. The personal arrest originally served to prevent the debtor from depriving the German enforcement authorities of access to his domestic assets through transfer abroad or through concealment measures at home. At the same time, the obligee should be given the opportunity to locate the debtor's assets which he can place with a real attachment or in which he can pursue foreclosure with a principal title acquired in the meantime.
Since the decisions of national courts have been recognized and enforced in all other Member States under European civil procedure law, the transfer of assets abroad has lost its practical importance as a reason for arrest.
Another significant reason for arrest is the fear that the debtor willing to flee would evade the summons to submit an affidavit . However, priority is given to the immediate acceptance of the financial information from the debtor after an attempted attachment ( Section 807 ZPO), which can take place before an attachment procedure has even been initiated and is sufficient to protect the obligee. The objection to the immediate acceptance of the asset information is not sufficient on its own as a ground for personal attachment, as the debtor can have reasonable grounds for such an objection, for example seeking legal advice.
Completion
The court of the main matter or the court in whose district the object or the person whose personal freedom is to be restricted is located is responsible for ordering the arrest ( Section 919 ZPO). The order of the arrest creates the basis for its execution. This is not done ex officio by the court, but by the bailiff on behalf of the obligee .
Personal arrest is carried out through imprisonment or other restrictions on personal freedom to be imposed by the court ( Section 933 ZPO). The bailiff can, for example, take away the debtor's identification documents, passport or an issued foreign visa, in extreme cases he will be arrested. Detention takes place in accordance with the provisions on compulsory detention (Sections 802g, 802h and 802j Paragraphs 1 and 2 ZPO). The debtor is arrested by a bailiff on the basis of a judicial arrest warrant ( Section 802g ZPO). The duration of detention may not exceed six months ( Section 802j (1) ZPO). The procedure for the arrest regulates § 145 of the business instructions for bailiffs (GVGA).
If the arrest court has ordered that the debtor is not allowed to leave his apartment, his house, a certain city or a certain district, this is an imperative to cease and desist of the debtor, which in the way of enforcement according to § 890 ZPO through the threat and possibly Imposition of regulatory means is enforced.
Legal protection
The debtor's legal remedy or legal remedy against the order of attachment is an objection if the order of attachment was issued by resolution, otherwise an appeal or revision .
Individual evidence
- ↑ Winfried Schuschke: The execution of the personal security arrest DGVZ 1999, p. 129-134
- ↑ § 5 Arrest / II. Sample : Application for personal arrest Haufe.de, accessed on September 27, 2019
- ↑ Schuschke in: Schuschke / Walker, Vol. II, § 933 ZPO marginal no. 2; Wieczorek / Thümmel, ZPO, 933 para. 1
- ↑ Lecture ZPO II. Part II: Temporary legal protection University of Würzburg (no year), accessed on September 27, 2019
- ↑ Business instructions for bailiffs as of October 1, 2016
