Provisional enforcement means the possibility of a not yet final court decision the execution to operate. The conditions under which a judgment can be declared provisionally enforceable result from Sections 708 ff. Of the Code of Civil Procedure (ZPO).
The phenomenon can easily be demonstrated with the following example: In a civil case , the first instance court sentenced the defendant to pay the plaintiff an amount of € 4,000. The defendant has the opportunity to appeal against this judgment . As long as the deadline for filing an appeal has not yet expired, or an appeal has been filed and the court of appeal has not yet decided, it is questionable whether this judgment will stand. The same applies to other remedies , such as the revision against an appeal judgment. In such cases, the plaintiff can nonetheless demand payment of the amount awarded to him before a final decision is made and, if necessary, enforce it with the means of enforcement law if the judgment is provisionally enforceable.
The German civil procedure law regulates the problem in § 708 ff. ZPO. The different interests of those involved are taken into account in a differentiated way.
The starting point of the legal regulation is initially that a judgment is provisionally enforceable only if it has been declared provisionally enforceable by the court. Without such a declaration, the foreclosure could only be carried out if the judgment is final. However, the court must make a decision on provisional enforceability. Here it can order that the judgment is provisionally enforceable either against security or without security. Section 708 ZPO names a number of judgments that are to be declared provisionally enforceable without security being provided, while Section 709 ZPO stipulates that other judgments are only to be declared provisionally enforceable against a security to be determined in terms of amount. The security deposit can also consist of a litigation guarantee from a German credit institution ( Section 108 ZPO).
The bankruptcy risk is distributed through the regulations on providing security. If the plaintiff is only allowed to enforce a judgment if he provides security in the amount to be enforced, the defendant does not have to worry that the plaintiff will no longer have the recovered amount after a successful appeal for the defendant and could therefore not return it . In the case of security enforcement, the seized objects may therefore only be used after security has been provided or the judgment has become final.
In the case of most judgments that are to be declared provisionally enforceable without the provision of security, the debtor can, according to Section 711 ZPO, avert enforcement by providing security. In this constellation, the debtor is protected from the creditors during the ongoing appeal is insolvent.
The decision on provisional enforceability is part of the ruler's tenor .
On the other hand, judgments by a labor court are always provisionally enforceable according to Section 62 (1) sentence 1 ArbGG .