Enforcement defense action

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By means of enforcement defense action in accordance with § 767 of the Code of Civil Procedure (ZPO) - before inserting the official heading in § 767 partially as ZPO enforcement countersuit called - can the judgment debtor in the enforcement under certain conditions objections and defenses against the enforceable claim and thus against the legality of the enforcement assert. The effect of the enforcement defense action consists in the fact that the enforceability of the titled claim is ripped off by a judicial drafting act ("de-titleing").

Requirements for a decision

Admissibility

The enforcement defense action is admissible if the enforcement debtor applies to declare the enforcement inadmissible and asserts material objections and defenses against a titled claim. All enforceable titles, such as the final judgment ( Section 704 (1) ZPO), the litigation ( Section 794 (1) No. 1 ZPO), cost-fixing decisions ( Section 794 (1) No. 2 ZPO) or the notarial deed come as titled claims , in which the debtor has submitted to immediate foreclosure ( Section 794 (1) No. 5 ZPO) etc., into consideration. The enforcement defense action is to be separated from the immediate complaint and the enforcement reminder , which complains about decisions or measures and the manner of enforcement, and from the third party action , the action for preferential satisfaction , which concerns the object in which the enforcement is carried out. Finally, there is what is known as the sui generis design action or procedural design action, which is based analogously on Section 767 (1) ZPO and has objections to the validity of the title itself.
If the enforcement debtor alleges objections or defenses against the titled claim, he denies the reason for the enforcement. He neither complains about the manner of enforcement nor does a third party assert rights with regard to the subject of enforcement. Furthermore, the admissibility of the enforcement defense action is to be distinguished from the appeal according to §§ 511 ff. ZPO. Both legal remedies can be admissible side by side, provided that the period for appeal has not yet expired. In principle, it would then be advisable to use the legal remedy of appeal, as this not only prevents the enforceability of the claim, but also makes the title completely invalid. Of course, the point in time at which the objection arises must be taken into account, because newly won objections can no longer shake the first-instance judgment due to the preclusion - in this case the enforcement defense action would be the correct legal remedy.

Jurisdiction

The trial court of first instance, Section 802 ZPO, has exclusive jurisdiction in terms of content and location . The court of litigation is to be understood as the court that titled the claim. This is, for example, the locally competent district court if the value in dispute does not exceed € 5,000 or disputes arising from a tenancy are the subject of the proceedings. If enforcement is carried out from enforceable documents that were not preceded by a criminal investigation, the court of first instance with which an action would have to be filed is responsible.

Need for legal protection

The enforcement debtor has a need for legal protection as soon as an enforcement order is available and enforcement is imminent. It does not apply as soon as the foreclosure as a whole has ended. Exceptionally denies the case law. (Counter isolated criticism from the literature) in cases in which the enforcement of counter-action is directed against a portion of entitled recurring services, the need for legal protection if the title creditors for that part of a serious so-called. Enforcement waiver explained.

Decision on the matter

The enforcement debtor's action will be allowed if the objections or defenses raised against the claim are present and not excluded . The enforcement defensive action is not there, the judgment debtor to prevent, any objections to be spent on knowledge process has failed put forward as a defense, or who were already late in the cognitive process ( § 296 Abs. 1 ZPO) to make up for in enforcement proceedings. Therefore, objections and defenses have to end insofar as the reasons on which they are based only arose after the end of the oral hearing in which they should have been presented at the latest and can no longer be asserted through objection ( Section 767 Paragraph 2 ZPO). In the case of design rights (e.g. contestation , withdrawal , offsetting ), it is disputed whether the point in time at which the prerequisites for exercising the design right exist is relevant or whether it is based on the point in time when the design right is exercised. The highest court rulings are based on the point in time at which the structuring right could objectively have been exercised. Section 767 (2) ZPO represents the time limit of the material legal force . If claims are enforced which are not capable of legal force (notarized documents subject to immediate enforcement), it goes without saying that all objections and defenses are not can be precluded. This is made clear by Section 797 (4) ZPO. The purpose of the enforcement defense action is to compensate for the fact that, for reasons of the effectiveness of the enforcement, the enforcement bodies are relieved of the burden of checking whether the titled claim has ceased after the end of the oral hearing.

The enforcement defense action does not decide on the existence or non-existence of opposing claims, the aim of the action is to remove the enforceability of the title. Even after a rejection, an action against enforcement does not stand in the way of another action, such as a declaratory action . However, a declaratory action aimed at the non-existence due to the exercise of a creative right is inadmissible if the rejection was made due to the exclusion; the exercise of the design right is deemed not to have taken place.

Examples

Example 1: A was sentenced in July 2004 to pay B € 10,000. On September 1, 2004, B is enforcing the assets of A. However, he had already paid B the € 10,000 in August 2004. Now A can successfully defend himself against enforcement measures by B with the enforcement defense action.

Example 2: A was sentenced on the basis of the trial on July 31, 2004 to pay B € 10,000. On September 1, 2004, B is enforcing the assets of A. However, he had already paid € 10,000 to B at the beginning of May 2004, but forgot to notify the court of this fact. Here, A can no longer successfully defend himself against enforcement measures by B with the enforcement defense action. The objection to fulfillment that was omitted in the preliminary process is excluded.

Example 3: B has reached a provisionally enforceable cost-fixing decision against A , from which B explicitly threatens enforcement. In order to prevent a seizure of the labor income or a seizure of the bank balance from the outset, A is bringing an enforcement action against B. A argues that the enforcement of the cost fixing order is inadmissible simply because the cost fixing order is based on an excessive amount in dispute . As part of the procedure for setting the amount in dispute, the amount in dispute will be reduced later. The enforcement defense action is therefore admissible and well founded.

Individual evidence

  1. ↑ Jan Kaiser, The demarcation of the enforcement defense action against the procedural design action sui generis , NJW 40/2010, 2933
  2. ↑ BAG NJW 1980, 141; OLG Hamm ZIP 93, 523; OLG Frankfurt OLGR 1994, 82: Service to avert the ZV from the first instance judgment; Zöller / Herget, Code of Civil Procedure, § 767 Rn. 4th
  3. ↑ Daniel Holznagel: waiver of enforcement, in particular of the maintenance creditor: Does the need for legal protection no longer apply for counterclaims and amendments? . NZFam (2/2014), CHBeck, 2014, pp. 58 - 63.
  4. ↑ a b BGH , NJW 2009, 1671 mw.

literature

Wikibooks: Law of Civil Procedure in the 2nd State Examination: Enforcement Counterclaim  - Learning and teaching materials