The debtor pays the overdue receivables not the creditor, the creditor may lodge his claims in the context of the enforcement of using courts forcibly trying to collect. The prerequisite is an enforceable title (e.g. ZPO) with an enforcement ( ZPO) and its delivery to the debtor. The most common title is the enforcement order ( (1) ZPO), which deals with the payment of a certain sum of money in euros . If the debtor does not object to a payment order , an enforcement order ( (1) ZPO) is issued at the request of the obligee , from which the obligee can pursue foreclosure.
The debtor's movable property that is in his property is subject to attachment . The consequence of an effective attachment is entanglement and the right of attachment . A seizure is prohibited by law if it cannot be seized .
In Germany, the seizure is based on the provisions of the Code of Civil Procedure (ZPO). In private law, it requires an enforcement order which must be served on the debtor. The enforceable title replaces the enforcement order in public law .
The seizure differentiates according to the type of the pledged object:
- Movable items are taken into possession by the bailiff by way of attachment in property (Section 74 business instructions for bailiffs GVGA NRW). This applies in particular to money , valuables and securities . He leaves less mobile things with the debtor ( (2) ZPO) and identifies them by affixing a pledge seal . Objects that are not in the custody of the debtor can be seized by the bailiff if the person in custody is willing to surrender the objects or if the creditor himself is the person in custody (Section 70 (2) GVGA NRW). The bailiff does not have to check whether these items are owned by the debtor (Section 71 (1) GVGA NRW). In the case of attachment of the pocket , the debtor is physically searched for attachable money in particular. As an exception, the bailiff has the disposal of an exchange attachment and an advance attachment of property that cannot be seized.
- Claims or rights : The seizure of assets and other property rights is usually done by one from the enforcement court adopted attachment and transfer decision , in public law by means of a by the executing authority adopted attachment available . Also domains are the opinion of the Supreme Court subject to attachment.
Attachment of physical property
The specific procedure of a seizure is generally regulated in §ff. ZPO as well as the uniform state law enforcement agency (GVGA) issued by the state judicial administrations.
Search of the apartment
The attachment is carried out by a bailiff (in private law) or an enforcement officer in public law. The bailiff looks for attachable objects in the debtor's home . This includes all non-essential items. A number of objects (especially simple household items, work equipment and the like) cannot be seized (seizure protection, see list in ZPO).
Procedure and effect of the attachment
If the enforcement officer finds what he is looking for, he takes the objects or puts a pledge seal on them , the so-called cuckoo . Before the seizure, however, the enforcement officer should also weigh the value of the item against the costs arising from the seizure, as these must also be paid by the debtor. Often only a few particularly valuable or as good as new devices are seized because others would not cover the debt with their value. One speaks of a pocket attachment if, for example, the cash that the debtor is carrying is attached. Legally, the seizure by the bailiff entails the entanglement of the seized item and the creation of a lien . The extended rights now make the obligee into a pledgee .
The attachment of an already attached item (no claim: see Thomas / Putzo monetary claim is called follow-up attachment . The old or, what is more common, a new creditor can be the creditor ( ZPO). In the case of several creditors, according to Code of Civil Procedure (ZPO), each creditor can carry out the realization himself, whereby the first pledgee is usually satisfied first. The bailiff who acts first is responsible.marginal number 2 ZPO) for a further
How the seizure should actually take place is only rudimentarily regulated in Germany. Since there is currently no "Bailiff Act", the legitimation and activity of the bailiff result from Breaches of duty, which in practice are in particular omitted enforcement measures , over- attachments or the enforcement of non- attachable property, can lead to claims for damages by the affected creditor or debtor from official liability in accordance with BGB lead.GVG (Judicial Constitution Act) and above all ZPO. The uniform bailiff business instructions issued by the state justice administrations apply across the country . It regulates the manner of foreclosure, compliance with which is the official duty of the bailiff.
In the literature it is sometimes criticized that the provisions on attachment of property (ZPO) have remained practically unchanged since 1877 and are only adapted or interpreted by the case law on a case-by-case basis. This means that there is considerable legal uncertainty in this entire area, which is increasingly affecting large sections of the population.
Seized items are publicly auctioned (ZPO), either on site or as a generally accessible auction on the Internet via an auction platform, seized money is to be delivered to the creditor ( ZPO), seized securities are if they have a stock exchange or market price, to be sold by the bailiff at the daily rate ( ZPO). When using unseparated fruit, the bailiff has to have the harvest carried out ( ZPO). At the request of the obligee or the debtor, the bailiff can also use a seized item in another way, for example transferring ownership to the obligee himself or to a person named by the obligee ( (1) ZPO).
The auction begins with the minimum bid. The claims of the creditors are satisfied from the proceeds of the auction. If there is still money left over, the debtor receives it.
Attachment of claims and other property rights
The attachment of claims and other property rights is regulated in §§ 828 et seq. ZPO and takes place in the German private law generally by the enforcement court adopted attachment and transfer decision , the public right by means of a by executing authority issued attachment available . Also domains are the opinion of the Supreme Court subject to attachment.
Garnishment Exemption Limits
|January 1, 2002||June 30, 2005||930||1280||1475||1670||1865||2060||2851|
|July 1, 2005||June 30, 2011||990||1360||1570||1770||1980||2190||3020|
|July 1, 2011||30th of June 2013||1030||1420||1640||1850||2070||2280||3118|
|July, 1st 2013||June 30, 2015||1045||1438||1657||1876||2095||2314||3166|
|July 1, 2015||June 30, 2017||1074||1480||1710||1930||2160||2380||3292|
|July 1, 2017||June 30, 2019||1140||1570||1800||2040||2280||2520||3476|
|1st July 2019||June 30, 2021||1180||1630||1870||2120||2370||2620||3613|
above this limit
In Germany, a debtor is allowed to keep part of his monthly net income when his income is attached. The amount of the seizure exemption limit is graded according to the number of maintenance obligations of the debtor (employee).
- Income below the exemption limit remains free from attachment.
- Income that is above the exemption limit and below the maximum amount remains non-attachable at the stated percentages.
- Income above the maximum amount is garnished in full.
The amount exempt from attachment can be increased at the debtor's request if he is otherwise unable to secure the necessary livelihood (ZPO), as in the case of more than five dependent persons, high accommodation costs, dietary meals ( ZPO).
Income from overtime is only 50 percent, vacation pay cannot be seized at all. The annual bonus ( Christmas bonus ) is non-attachable up to half of the monthly income, up to a maximum of 500 euros. A number of other types of income cannot be seized, or only under special circumstances (such as allowances for the blind, compensation for pain and suffering ( , ZPO)).
Calculation example (without maintenance payment, without the above exceptions): With a monthly Net income of € 2600, the seizure allowance is € 1573.66, i.e. In other words, a maximum of € 1,026.34 can be seized.
On July 1 of every odd year, the seizure exemption limits change according to the percentage change in the basic tax allowance according to (1) No. 1 of the Income Tax Act (EStG) in the version applicable on January 1 of the respective year.
Since January 1, 2012, a garnishment protection account ( P-account for short ) has been required in Germany for seizure protection for account seizures in accordance with ZPO . Every bank in Germany has therefore been legally obliged since July 1, 2010 (as part of a transitional arrangement to prepare for the new account seizure protection law from January 1, 2012) to transfer an existing account to a seizure protection account at the request of a customer (only for a natural person) to convert. This means that it is no longer possible to block accounts up to a so-called seizure protection amount regulated by law (and for a certain period of time). Only one P account is possible per person. Seizure-free social benefits and maintenance obligations only increase the seizure allowance if the P-account holder has applied for this to his account-holding bank by submitting evidence.
The debtor can take action against the bailiff's approach in the event of attachment by issuing a reminder in accordance with Code of Civil Procedure. The debtor against the seizure itself wants underlying titled turn claim, he can enforcement countersuit gem. ZPO.
Since the bailiff does not examine the property situation when the movable property is seized by him, it can also happen that something is seized that does not belong to the debtor. In such a case, the German Code of Civil Procedure (ZPO) has provided legal remedies that help the actual owner regain his rights. On the basis of Code of Civil Procedure - the so-called third party objection suit - the owner can claim his rights through a judicial process. The prerequisite for this is that the foreclosure has already started - usually with seizure - and has not ended, as well as the impairment of ownership of a thing or a property-like right. If the action is successful, the court pronounces the inadmissibility of the seizure in its verdict and stops the enforcement of the item. Holders of a lien or right of exploitation prior to seizure in foreclosure can also assert their rights by filing a lawsuit. The difference here, however, is that holders of a lien or exploitation right are not supposed to prevent foreclosure. Rather, this is in accordance with the action for preferably satisfaction . ZPO granted a privileged rank in relation to the other creditors from the proceeds of the auction.
Under Swiss law, the debtor is required to be present at the seizure (Art. 91, Paragraph 1, Item 1 DEBA). After unsuccessful or inadequate attachment, the obligee is issued with a certificate of loss with which he can later assert his claim should the debtor regain his assets.
- Federal Act on Debt Collection and Bankruptcy of April 11, 1889 (DEBA; SR 281.1) valid for Switzerland
- Who bears the costs of garnishment of wages? (PDF)
- BMJ department foreclosure and foreclosure auction
- Seizure exemption limits for labor income 2013 (current version of the BMJ brochure as a PDF file, valid from July 1, 2013)
- Forms for attachment
- Domain attachment
- BGH, decision of July 5, 2005, Az .: VII ZB 5/05 ; general on this: essay in JurPC
- Putzo in Thomas / Putzo § 827 Rn. 1, § 826 Rn. 4th
- Glenk: Indispensable all sorts - office and liability of the bailiff. In: NJW - New Legal Weekly. 32/2014, pp. 2315-2319.
- Glenk: Antiquated non-attachability rules in the ZPO. In: ZRP - Journal for Legal Policy. 8/2013, pp. 232-236.
- cf. Ministry of Justice of the State of North Rhine-Westphalia (ed.): Justice auction Germany & Austria. Retrieved August 12, 2020.
- General terms and conditions of the judicial auction as of June 2015.
- cf. Section 103 GVGA separation of fruit and auction (Section 824 ZPO).
- Florian Lohkamp: Exploitation of the pledged goods. Brief overview 2010.
- The seizure and recovery of physical property. Opportunities for other use Haufe.de, accessed on August 11, 2020.
- Olaf Muthorst: exploitation of the mortgaged property , in: Principles of the foreclosure law. Nomos-Verlag, 2nd edition 2016, pp. 112–116.
- ZPO: The auction process for executing movable property lecturio.de, May 16, 2019.
- Decision of July 5, 2005 - VII ZB 5/05 ; general on this: essay in JurPC
- Announcement of the attachment exemption limit 2009 of May 15, 2009 ( Federal Law Gazette I p. 1141 ).
- Basic tax allowance in Section 32a, Paragraph 1, No. 1 of the Income Tax Act (EStG) was identical on January 1, 2007 and January 1, 2009 to the tax allowance on January 1, 2005, so that the tax exemption limits on July 1, 2007 and January 1, 2009 July 2007 according to Federal Law Gazette I p. 416 ) the allowance in EStG was increased. Due to (1) EStG in the version of this law, this increase was in effect from January 1, 2009. The 2009 seizure exemption notice was only published in May 2009 after this change. Abs. 2a ZPO have not increased. Formally, however, the amounts should have been adjusted as of July 1, 2009, since on March 6, 2009 No. 1 G. v. March 2, 2009 (
- BGBl. I p. 825 ) v. May 9, 2011 (
- BGBl. I p. 710 ) v. March 26, 2013 (
- BGBl. I p. 618 ) v. April 27, 2015 (
- Information service debt counseling - increase of the seizure exemption limits as of July 1st, 2013 ( memento of the original of October 5th, 2013 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.
- Law to reduce cold progression (PDF; 48 kB), BT-Drs. 17/11842 , passed by the Bundestag on January 17, 2013, approval by the Bundesrat on February 1, 2013, announced on February 25, 2013 ( Federal Law Gazette I p. 283 )
- BGBl. I p. 750 ) v. March 28, 2017 (
- BGBl. I p. 443 ) v. April 4, 2019 (
- garnishment for labor income 2011 ( memento of the original from October 27, 2011 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. (PDF)
- table generator Justice portal of the Ministry of Justice of North Rhine-Westphalia, accessed on August 13, 2018.
- For the first time on July 1, 2003 according to Para. 2a ZPO
- Hunziker / Pellascio, p. 107.
- on the seizure loss certificate: Hunziker / Pellascio, p. 154 ff.