Impossible item
In compulsory enforcement law, an object that cannot be seized is all objects that are not subject to seizure by law .
General
In jurisprudence , an object is anything that can be a legal object . The subject is used as a generic term for things , claims , intellectual property rights and property rights , but not for personal and family rights .
By the immunity from seizure of certain items a 'Kahl seizure "is to prevent the debtor. Seizure would be the seizure and realization of all assets of a debtor against which he can defend himself with the remedy of remembrance .
species
Objects, claims and rights belong to the non-attachable items.
stuff
In accordance with Section 811 of the German Code of Civil Procedure (ZPO), non- attachable items are not subject to attachment, as in particular
- items used for personal use or household purposes (such as clothing , linen , beds , household and kitchen utensils ), even if the debtor needs them for one of his professional activities ;
- the food , fire and lighting equipment required in the household for four weeks ;
- Small animals ( domestic animals ) in limited numbers as well as a dairy cow or, at the debtor's option, a total of two pigs , goats or sheep , if these animals are necessary for food;
- items required to continue work ( work equipment such as work equipment or work clothing );
- items required to continue the employment of the debtor or his spouse;
- Wedding rings , medals and decorations , engagement rings (str.).
- Items that are necessary due to a physical disability such as glasses or prostheses . In individual cases, this can also include a motor vehicle ; In the case of severely disabled people with the aG mark, this is generally assumed, in the case of severely disabled people with the mark G, if the use of public transport is unreasonable due to the special circumstances.
The bailiff ex officio has to observe the non-attachability. He may not seize unpfändbare things, if they do not the exchange attachment ( § 811a , § 811b ZPO) or the anticipation attachment ( § 811d ZPO) subject. The non-attachability concerns the "modest management of life and household" (§ 811 No. 1 ZPO), so that luxury goods can always be attached. What is part of a modest way of life and housekeeping is determined by traffic custom . Nowadays this includes refrigerator , washing machine and color television ; they cannot be seized. If other pledged objects are not available in sufficient quantities, however, if there are doubts about the non-pledging, he must seize the item (Section 72 business instructions for bailiffs [GVGA NRW]). According to Section 812 of the German Code of Civil Procedure (ZPO), items belonging to normal household effects are not seizable. § 811 ZPO expressly excludes these assets from the seizure, which are intended to enable the debtor to live in human dignity.
Statutory Liens
The non-attachability also affects the statutory liens such as the landlord's lien ( Section 562 (1) sentence 2 BGB ), lessor lien ( Section 592 BGB) or the innkeeper lien ( Section 704 sentence 2 BGB). Landlords, lessors or innkeepers may only exercise their right of lien on attachable property of the tenant / lessee / guest for their due and unpaid claims. The exception is ordinary household effects that can be seized by these legal entities . In the case of the lessor's lien , the entrepreneur's lien ( § 647 BGB) and the commercial legal liens ( commission agent , carrier , forwarding agent and warehouse keeper ), however, there is no provision for non-attachability.
equipment
The accessories of a piece of land or the same right belonging to the landowner cannot be seized ( Section 865 (2) ZPO). It belongs to the liability association for mortgages and is therefore subject, together with the property, to foreclosure against immovable property . For example, the bailiff may not seize the tractor in the case of foreclosure against the owner of an agricultural operation , and the machines intended for operation in the case of foreclosure against the owner of a factory (§ 78 GVGA NRW).
requirements
According to § § 850 ff. ZPO, earned income and other current payments are subject to special seizure protection. Income from work that does not exceed € 930 per month (€ 217.50 per week, € 43.50 per day) is always non-attachable, cf. Table for Section 850c ZPO (as of October 1, 2017). These amounts increase depending on the number of dependents, which the debtor actually maintenance grants. So is z. For example, with a “standard family” of four (sole earner, spouse, two children) a monthly net income of up to € 1,679.99 cannot be attached.
Absolutely unassailable
Always subject to seizure are to § 850a ZPO:
- half of earned income resulting from overtime ;
- Vacation pay as well as other benefits for special occasions (long years of service , anniversary of the company), provided they do not exceed the usual;
- Expense allowances , risk allowances and similar allowances, (according to § 3b EStG tax-free) night work , shift and Sunday and holiday allowances, provided they do not exceed the usual, in particular also income from a 1 euro job ;
- Christmas bonus up to half of the monthly income, but no more than 500 euros;
- Marriage and childbirth allowances, unless maintenance claims are enforced;
- Education grants, scholarships and similar payments;
- Death benefits in the event of the employee's death as well as pardons in the event of disability;
- Blind allowance according to state law .
After § 54 SGB I following are benefits for earmarking exempt from attachment:
- Services and benefits in kind, such as integration assistance for disabled people and benefits from an outpatient care service ;
- Parental allowance and care allowance up to an amount of 300 euros, as well as state childcare allowance ;
- Maternity allowance up to an amount of 300 euros, but no more than the amount of the parental allowance;
- Housing benefit except for claims due to rent arrears;
- certain disability benefits such as assistance for the blind according to SGB XII as well as care allowance ;
- Child benefit , unless maintenance claims are enforced.
Conditionally attachable
The following payments are conditionally attachable according to § 850b ZPO ; They can only be attached if the creditor's claims could not be satisfied through other remuneration and assets and the attachment is equitable :
- Injury pension ;
- Pensions under the Federal Pension Act and other laws that refer to its legal provisions;
- Donations from a foundation , income from a retirement part ;
- Widow's pension , orphan's pension , sick pay and similar social benefits, as well as term life insurance , if the sum insured does not exceed 3579 euros.
However, there is an exception in the case of garnishment due to maintenance claims : According to § 850d ZPO, further claims can be seized. As a rule, the competent local court sets a lower seizure exemption limit, which is based on the social welfare rate and in individual cases can be less than € 700 per month for a single person. However, the standard rate may not be attached under any circumstances, the debtor must in any case be left with the standard rate and the reasonable accommodation costs. The same applies in the case of seizures due to an intentional unlawful act in accordance with Section 850f (2) ZPO, these claims are, however, subordinate to maintenance claims.
Further claims and rights
In addition to earned income, there are numerous other claims that are subject to non-attachability.
Assignment prohibitions
According to § 851 ZPO, a non- assignable claim can not be attached. According to § 399 Alt. 1 BGB Claims for which the performance to someone other than the original creditor cannot be made without changing their content (so-called highly personal claims, e.g. from family law obligations). Statutory prohibitions of assignment for highly personal rights also exist in Section 717 (2) BGB (mutual shareholder claims ) or Section 29 (1) UrhG (for copyrights ). When in doubt do not be transferred are considered § 613 sentence 2 BGB (claim for service ), § 664 para. 2 BGB ( execution ) and § 1059 BGB ( usufruct ). The Riester pension is exempt from attachment, unless the services provided by the debtor pension contributions actually state-by allowances or special expenses deduction be encouraged and not exceed the maximum, because the accumulated balances are in accordance with § 851 Abs. 1 ZPO in conjunction with § 97 sentence 1 EStG not transferable. The tolerated account overdraft is also non-attachable because the mere tolerance of an account overdraft does not give the customer a attachable claim to credit against the bank .
Garnishment protection account
At the request of the debtor, the enforcement court can order, in accordance with Section 850l ZPO, that the bank balance on a seizure protection account cannot be seized for a period of up to twelve months if the debtor can prove that in the last six months prior to the application, the account was overwhelmingly only unattainable amounts have been credited, and he makes plausible that even within the next twelve months only the vast majority of non-attachable amounts are to be expected.
Life insurance
Life insurance policies can be protected from attachment if they have been converted to pension payments in good time; the requirements are analogous to § 851 ZPO:
- The benefit is only payable as a pension (except in the event of death) and not before the age of 60 or in the event of occupational disability ,
- Agreement of a waiver of disposal with the insurance company ,
- Designation of the surviving dependents as beneficiaries .
There is a right to conversion to existing insurance policies.
Legal consequences
The non-attachability results either from the fact that certain items are completely withdrawn from the seizure ( household effects ) or only some are classified as attachable ( seizure exemption limits for income from work). The non-attachable parts must remain with the debtor, otherwise the debtor can defend himself against unjustified attachments with the legal reminder of the enforcement reminder according to § 766 ZPO. The debtor against the seizure itself wants underlying titled turn claim, he can enforcement countersuit according to § 767 raise ZPO.
Individual evidence
- ↑ Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, preliminary note § 90, Rn. 2
- ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, preliminary note § 90, Rn. 2
- ↑ Springer Fachmedien Wiesbaden (ed.), Compact Lexicon Economy , 2014, p. 295
- ^ BGH, judgment of January 28, 2010, Az .: VII ZB 16/09
- ↑ Duru, Boris: The seizure protection for the engagement ring that conforms to fundamental rights .
- ^ BGH, judgment of March 19, 2004, Az .: IXa ZB 321/03
- ^ BGH, judgment of June 16, 2011, Az .: VII ZB 12/09
- ^ RG, judgment of April 20, 1931, Az .: VI JW 532/78, 710, 790
- ↑ Bernhard Wieczorek / Rolf A. Schütze / Wolfgang Lüke (eds.), Large Commentary on the Code of Civil Procedure and Ancillary Laws , Volume 4, Part 2, 1999, Section 812 Rn. 6th
- ↑ RGZ 59, 87
- ↑ BGH, decision of June 29, 2016, Az .: VII ZB 4/15
- ^ BGH, judgment of November 25, 2011, A .: VII ZB 111/09
- ↑ BGH, judgment of November 16, 2017, Az .: IX ZR 21/17
- ↑ BGHZ 93, 315, 325