Lien
The seizure lien is a lien of the enforcement creditor on a seized object. It arises from the seizure of a thing by the bailiff or a claim by the enforcement court in the case of foreclosure .
Legal character
The fact that the obligee acquires a lien through the seizure results from Section 804 (1) ZPO . The prerequisites for the creation of the seizure lien have long been disputed because of different views on the character of the seizure, i.e. the question of whether it is a purely public law or a wholly or also private law process.
Private law theory
According to the private law theory previously represented, the seizure lien was a third type of private law lien. The act of attachment then merely replaced the contractual appointment of the lien. This theory was based on the assumption that the actions of the bailiff were purely private law. Today, however, it is generally recognized that foreclosure has a sovereign character. This means that a purely private-law classification of the lien is obsolete today.
Public law theory
Today, a theory under public law and a mixed theory to explain the seizure lien are essentially still represented. Public law theory is mainly represented in legal literature. According to this theory, the seizure lien is based only in public enforcement law and is fundamentally different from the legal lien. According to this theory, the seizure lien is independent of whether the creditor's claim to be secured (still) exists (not ancillary ). According to this theory, it does not matter whether the attached thing belongs to the debtor or even to the creditor himself. If the thing of a third party is attached, the third party can defend itself with a third party action. The regulations on the legal lien ("mortgage lien") should only be applicable insofar as they can be "reconciled with the nature of the lien". According to this theory, the seizure lien arises without further prerequisites with the seizure ( entanglement ).
Mixed theory
The mixed theory developed from the private law theory. It is represented by the jurisprudence, but also by parts of the literature. The advocates of this theory continue to assume that the seizure lien is fundamentally a private law nature. However, the exploitation process should be assigned to public law.
From the basic assumption that the seizure lien is of a private law nature, it follows for the representatives of this theory, within which the views differ considerably in detail, that the seizure lien is to be equated with the legal lien of the BGB. According to this, it is accessory, i.e. dependent on the existence of the claim to be secured. As with the legal lien according to § 1252 BGB , the expiry of the claim must lead to the loss of the lien. A seizure lien on non-debtor's or the creditor's own property is then also not possible, because only the owner can order a legal lien and the BGB does not recognize a lien on his own property. According to the mixed theory, the seizure lien only arises in the event of an effective entanglement and if the essential requirements for enforcement are met (title, clause, service, no obstacles to enforcement) and no important procedural requirements, such as B. § 809 , § 811 ZPO are violated. In contrast to the public law theory, entanglement and lien can fall apart here. The mixed theory justifies its view in particular with the formulation of the legislature in § 804 ZPO, which refers to the legal lien.
Effects of the theoretical dispute
In most cases, the theoretical dispute has no effect on the result. However, there are differences if, due to the order of precedence, the point in time at which the seizure lien arises, for example because the enforcement title had not yet been served at the time of the seizure . This deficiency can be cured according to § 189 ZPO, but only takes effect from the time of healing. In this case, according to the public law theory, the seizure lien arose with the seizure act, according to the mixed theory, only when the lack of service was cured. If the thing has been seized again in the meantime, there is a different ranking, depending on which theory is followed.
literature
- Rolf Lackmann: Enforcement law. With the basics of bankruptcy law. An introduction to law and practice . 9th revised edition. Vahlen, Munich 2010, ISBN 978-3-8006-3702-7 , ( Vahlen legal clerkship ).
