Enforceable copy
The enforceable copy is in clause procedure with an enforcement provided copies of a judgment or other enforcement .
General
In the notarial system, the copy represents the original ( original ) of the document in legal transactions ( Section 47 BeurkG) because the original is not put into circulation, but is part of the notary's role as a document ( wills and contracts of inheritance are excluded ). This also applies to judgments that have been declared provisionally enforceable, the originals of which are also not intended for circulation. The copy therefore replaces the original in practical use.
The enforceable copy is a form of execution. Specifically, this involves the execution of a judgment or other enforcement title in accordance with Section 794 of the German Code of Civil Procedure, to which an enforcement clause has been added. The enforceable copy is a prerequisite for foreclosure , which is carried out according to strict rules. The so-called clause procedure is used to prepare for enforcement, which can only be carried out if the obligee has an enforcement title / enforceable judgment (with an enforcement clause ) and is served on the debtor .
species
In particular, notarial debt documents can be provided with an enforcement clause and are then called an enforceable copy. These include notarized declarations of liability as surety or acknowledgment of debt or land charge certificate . If, in the case of the latter, the property owner has encumbered his property with a mortgage and has declared submission to immediate enforcement in accordance with Section 800 ZPO, the copy made of this will be provided with the notarized enforcement note and sent to the creditor of the mortgage.
Requirements
According to § 725 ZPO, the enforcement clause may only be attached to one copy, but not to a simple copy. A copy is only required if, from a material or procedural point of view, ownership of the document is important and the original does not participate in legal transactions. The notarized enforcement clause shortens later enforcement proceedings because in the event of enforcement all that is required is service. The notary who created the original is responsible for issuing the document (Section 797, Paragraph 2, Clause 1, Section 802 ZPO) or, in the case of judgments, resolutions and process comparisons, the clerk of the court registry ( Section 724, Section 2 of the ZPO).
An enforceable copy may only be issued when it is ready for enforcement, unless there is a waiver of evidence as in the case of the declaration of submission. However, the examination of the readiness for enforcement cannot be inferred from the law and also contradicts the system of enforcement law.
In the case of enforcement notices , arrest orders and interim injunctions , no enforcement clause is necessary , in deviation from the normal case (Section 796 (1), Section 929 (1), Section 936 ZPO).
Individual evidence
- ↑ Christian Armbrüster / Diether Huhn / Nicola Preuß / Thomas Renner / Hans-Joachim von Schuckmann, Notarization Act and Service Regulations for Notaries: Commentary , 2009, p. 529.
- ^ Christian Armbrüster / Diether Huhn / Nicola Preuß / Thomas Renner / Hans-Joachim von Schuckmann, Notarization Act and Service Regulations for Notaries: Commentary , 2009, p. 530.
- ↑ Christian Armbrüster / Diether Huhn / Nicola Preuß / Thomas Renner / Hans-Joachim von Schuckmann, Notarization Act and Service Regulations for Notaries: Commentary , 2009, p. 573.
- ↑ Jürgen Stamm, The principles and basic structures of compulsory enforcement law , 2007, p. 256.
