Security deposit
A security deposit is the provision of security that is required for certain circumstances ex officio or by virtue of a contractual agreement . In private law, this security primarily serves to protect creditors . In criminal and administrative offense proceedings, the purpose of providing security is to secure the state's right to prosecute and enforce a sentence. In financial market law , it is primarily intended to increase the financial system's resilience to crises.
Types of security according to legal categories
Private law
Common law obliges the debtor in different contexts, for a claim of the creditor to provide security. So for the benefit of a known creditors in liquidation association determined that they must be paid for their demand security ( § 52 para. 2 BGB ). Another example is the right of a spouse, anchored in § 1389 BGB, to demand security for the future claim to implementation of the gain adjustment under certain conditions , or the claim according to § 1039 para. 1 sentence 2 BGB to the provision of security for the claim of recourse against the usufructuary enriched by excessive fruiting . Practically important applications can be found in building contract law in particular : Here there are the legally provided security funds of the building trades security mortgage according to § 648 BGB and the building trades security according to § 648a BGB to secure the contractor's wage claim ; To secure the purchaser's claims for the fulfillment of the contract or the fulfillment of claims in the event of construction defects, the provision of securities is often regulated in the contract (example: contract performance bond , warranty bond ). Insofar as VOB / B has been contractually agreed, § 17 VOB / B contains more detailed provisions for such securities in favor of the customer.
The type of security deposit is regulated in the general part of the German Civil Code (§§ 232 ff.). According to Section 232 (1) BGB, security can generally be provided
- by depositing money or securities,
- by pledging claims entered in the federal or state debt register,
- by pledging movable property,
- by ordering ship mortgages to seagoing vessels entered in the shipping register or the shipbuilding register,
- by ordering mortgages on domestic properties,
- by pledges of receivables, which are secured by a mortgage or a pledge of land charges or annuity charges of domestic plots.
If the security cannot be provided in this way, the provision of a qualified surety is permissible ( Section 232 (2) BGB).
Civil procedural law
Actual deposit or process cost security
- Main article: Actual bail
The actuarial bail or litigation security is the security provided by the plaintiff, which is provided in many countries in civil procedure law as protection of the defendant. In Germany it is regulated by § § 110 ff. ZPO. Foreign parties who are not resident in the EU have to provide this process cost security at the request of the defendant to secure a possible claim for reimbursement. The background to this regulation is the greater difficulty in enforcing claims abroad.
Cognitive procedure (Germany)
As an instrument of procedural law, the provision of security is regulated in Section 108 et seq. Of the Code of Civil Procedure (ZPO), which, in addition to the ZPO, also apply to proceedings under the Condominium Act or the Labor Court Act. The purpose of providing security is here to ensure justice is maintained as much as possible by limiting the cost risk .
Section 108 of the ZPO presupposes the existence of a statutory order to provide security. If this is available, the court can determine at its own discretion the type and amount of security to be provided. In contrast, in the absence of such a provision, the court is prevented from ordering a security deposit even if this may be fair.
If the prerequisites for the provision of a security deposit are met and the court does not make a provision for its execution, the security must be provided by an unconditional and unlimited guarantee from a suitable credit institution or by depositing money or suitable securities.
Enforcement proceedings (Germany)
- Main article: Provisional enforceability
Certain enforcement orders are only provisionally enforceable. This applies to first instance judgments, for example. From these judgments, the plaintiff should be able to enforce - if he has won the process - so that the defendant has as little incentive as possible to delay the proceedings by filing an appeal .
The regulations on security enforcement ( § 709 , § 710 ZPO) distribute the insolvency risk. If the plaintiff may only enforce a judgment if he provides security in the amount to be enforced, the defendant does not have to worry that the plaintiff no longer has the recovered amount after a successful appeal for the defendant and could not return it.
Criminal law
Criminal proceedings
Security payments in criminal proceedings serve exclusively to secure the state's right to prosecute. However, claims under private law cannot be secured in criminal proceedings by providing security. According to § § 127a , § 116a StPO, arrest can be waived if
- the accused does not have a permanent residence or place of residence in Germany ,
- the only reason for detention is the risk of escape ,
- a prison sentence is not to be expected and
- the accused has appointed an authorized recipient.
If these prerequisites are met, the accused can avert the threat of arrest by providing an appropriate security deposit covering the expected fine and procedural costs . In this case, the risk of escape is compensated by the security deposit. However, if there is doubt whether all the conditions are met, the accused must provisionally to § 127 para. 2 CCP arrested and a decision by the district court be awaited.
In addition, a security deposit according to § 132 StPO is possible if a suspect urgently suspected of a criminal offense cannot prove a permanent residence or place of residence in Germany, but the requirements of an arrest warrant are not met. If an accused does not comply with the security deposit order, means of transport (motor vehicle) and other items belonging to him and being carried by him may be confiscated . This seizure is not permitted when providing security under Section 127a of the Code of Criminal Procedure.
Administrative offense proceedings
For those affected by an administrative offense , a security deposit may be ordered ( Section 46 OWiG in conjunction with Section 132 StPO). According to Section 46 (3) OWiG, arrests and provisional arrests are not permitted in the fine proceedings, so that only the provision of a security deposit can be considered. Arrests - with the result of a deprivation of liberty - would be disproportionate here with the expected fine .
Financial market law
- Main article: Financial collateral
In financial market law , security deposits are regulated in the following areas:
- Position of collateral when granting loans
- Provision of security by the contractors with securities transactions and other financial instruments
Individual evidence
- ↑ Baumbach / Lauterbach / Albers / Hartmann, Rdz. 2 before § 108 ZPO
