Receivership
The sequestration is an execution method for enforcing requirements of creditors against the debtor .
Forced administration in Germany
The compulsory administration is subject to the provisions of the Code of Civil Procedure (ZPO). The compulsory administration procedure is regulated by law in the law on compulsory auction and compulsory administration (ZVG). It is a measure of individual foreclosure (as opposed to total enforcement (insolvency)). Foreclosure auction and administration are the only individual foreclosure measures that are generally possible during an ongoing bankruptcy proceeding. However, this only applies to those creditors who have secured liens; For which a land charge, mortgage or real burden is usually entered in the land register.
It is one of the ways to enforce the immovable property . Immovable property includes, among other things, (developed and undeveloped) land , heritable building rights and co-ownership shares associated with individual property ( residential property ). The process is intended either to satisfy the creditors with the proceeds without having to auction the property, or to prevent a decrease in value by the debtor. The procedure is carried out by a judicial officer at the competent local court as the enforcement court . The administration is transferred to a compulsory administrator, who is responsible for collecting any rents or leases and ensuring the proper and value-preserving management of the property from the income.
The administrator acts on a fiduciary basis and has to protect the interests of all parties as well as possible (see judgment of the BGH StR 156/11). If the income does not cover the expenses necessary for proper administration, the operating creditor has to make advances to compensate. Otherwise the forced administration will be discontinued. Insofar as the debtor lives in the property, the rooms that are indispensable for his household must be left to him as part of the compulsory administration in accordance with Section 149 ZVG. However, this only applies if the debtor is also willing to pay the additional costs of the apartment he is using. If the property is at risk or if the debtor does not pay the ancillary costs even after the debtor has been requested to pay, the debtor and his family members can already have the debtor and his family members evicted from the order of the enforcement court by means of a bailiff. However, the enforcement court must first decide on a corresponding application by the receivership pursuant to Section 149 (2) ZVG and also hear the debtor, provided that there is no imminent danger.
In contrast to the foreclosure auction, in which the creditor seeks the satisfaction of his claims from the substance (utilization) of the property, the income generated from the property ( rent , lease ) is distributed within the framework of the forced administration after deduction of the management costs. This is basically done on the basis of a division plan drawn up by the court ( Section 156 (2), Section 157 ZVG). The receivership pays certain current amounts without a division plan, in particular the current administrative expenses ( Section 155 (1) - Rank 0) and the current public charges ( Section 155 (2), Section 156 (1) ZVG - Rank 3). In principle, this also applies to the claims of the apartment owners ( Section 156 (1) sentence 2 ZVG). The payments - also due to the partition plan - takes the court-appointed and supervised official receiver in compliance with the law given precedence (- personally in § 155 para. 1, § 10 1 para ZVG -. Rank Class 1 to 5, with payment of principal, class 5, may only take place in a separate appointment - § 158 ZVG).
Creditors can have a foreclosure auction and receivables at the same time. Usually only after the award of the contract has become legally binding in the auction, the administration is lifted. In the period between the award and the lifting of the compulsory administration (usually after the surcharge has become legally binding), the debtor continues to administer - here the debtor has to take into account both the interests of the new owner and those of the obligee: because it is still the same forced administration at the request of the obligee , the obligee is responsible for the remuneration for this period. After cancellation due to a surcharge, the administrator settles accounts with the new owner (“buyer”); this is done by means of a so-called buyer account, which the administrator presents to the buyer and notifies the enforcement court. Even if the obligee withdraws the compulsory administration, the compulsory administration procedure only ends with the rescission decision of the competent enforcement court.
Remuneration of the receiver
The remuneration of the receivership is regulated on the basis of § 152a ZVG in the receivership ordinance of December 19, 2003 (ZwVwV). The standard remuneration for the compulsory administration of properties that are used by renting or leasing is usually 10 percent of the gross amount collected for the period of administration of rents or leases. In individual cases, the stated percentage can be reduced to 5% or increased to 15%. If the administrator is not entitled to a standard remuneration due to a lack of income, his remuneration is based on the time spent. The hourly rate is a minimum of 35 euros and a maximum of 95 euros. The minimum remuneration of the administrator is 600 euros if he has taken possession of the object of compulsory administration. If the compulsory administration procedure is lifted after the administrator has acted, but before he has taken possession of the compulsory administration object, he will receive a fee of 200 euros.
The remuneration covers the general business costs of the administrator, which also includes the administrator's office expenses, including the salaries of his employees. Special costs that the administrator actually incurs in individual cases, for example through travel or the hiring of assistants for certain tasks in the context of the administration, are to be reimbursed as expenses, insofar as they are reasonable. Instead of the expenses actually incurred, the administrator can, at his discretion, demand a flat rate of 10 percent of his remuneration for the respective accounting period, but no more than 40 euros for each month of his activity.
In addition to the remuneration and reimbursement of expenses, the administrator will be reimbursed the applicable sales tax.
Forced administration in the First World War
Forced administrations were introduced on a larger scale in the First World War by all warring parties as part of the economic war. The individual states proceeded differently. The Allies in particular began an early economic war against the Central Powers. This began physically with the naval blockade of the Central Powers and legally with extensive interventions in the ownership of hostile foreigners or companies and institutions in their respective spheres of power. Early on, France took ruthless action, particularly against German assets, some of which were placed under compulsory administration without any legal stipulations and which were quickly sold below value to the detriment of the German owners. Russia proceeded similarly , where the forced administrations assumed chaotic proportions because the central government was hopelessly overwhelmed with the warfare.
Great Britain also acted swiftly against enemy property, but at least on a legal basis (trading with the enemy acts). Enemy assets of all kinds have been placed under administration and liquidated. After the USA entered the war, they largely copied the British approach. The German Empire reacted to the extensive expropriations of foreign assets of its citizens with rather hesitant steps. Industrial companies were put under forced administration early on in 1914/15. Enemy private assets until 1917, however, only recorded statistically and only brought under the control of the trustee for the enemy assets from April 1917. In the Versailles Peace Treaty , Germany had to accept all forced administrations and the subsequent liquidations of its foreign assets. Because of Article 297 e, on the other hand, Germany had to service high claims for damages from former hostile foreigners.
Forced administration in the GDR
see provisional administration of western assets in the GDR
Web links
- Text of the Law on Foreclosure and Foreclosure
- Text of the receivership regulation
- Official justification for the administrator regulation
literature
- Richard Fuchs: The confiscation, liquidation and release of German assets abroad. Berlin 1927.
- Friedrich Lenz (Hrsg.): The German retaliatory measures in the economic war. Bonn 1924.
