Action for Impugnation
Action for Impugnation
The action for impugnation provides the obligor with an effective means to defend against an enforcement when certain facts preclude the approval of the proceedings. It becomes relevant when the enforcing creditor continues enforcement despite an agreement, a deferment, or a waiver, or when, in the context of an injunction enforcement, it is alleged that the obligor has violated an injunction.
The legal basis is found in § 36 EO, which precisely defines the cases in which the obligor can raise objections.
Foundations of the Action for Impugnation
In execution proceedings, when approving the execution, the court does not examine ex officio whether the enforcing creditor may have waived the initiation of the execution or whether the obligor actually committed the act of which he is accused. These questions concern facts that the obligor can present and that are not automatically included in the execution approval.
The action for rescission therefore serves as an instrument to have such facts legally established. The obligor brings the action for rescission if he disputes the prerequisites for the execution. He declares that the creditor has already received the claim. He argues that the creditor has agreed to a deferral or that he has not violated the alleged injunction. The action is directed against the “trigger execution”, i.e. against the concrete implementation of the execution, not against the execution title per se.
The action for impugnation is of particular importance in the area of injunction enforcement. In such cases, the enforcing creditor must prove in the impugnation proceedings that the obligor actually committed the alleged act. Only this examination ensures that an enforcement approval is not based on a mere assertion.
Parties to the Action for Impugnation
In enforcement law, two parties typically confront each other:
- the enforcing creditor, who applies for the enforcement
- the obligor, against whom the enforcement was approved
In an action for impugnation, this basic structure is maintained, but with reversed roles in the court proceedings:
- The plaintiff is the obligor, because they assert the objections against the enforcement.
- The defendant is the enforcing creditor, whose enforcement actions are to be reviewed.
Thus, the enforcement is not corrected ex officio, but only if the obligor takes action and asserts their rights. The proceedings are structured as ordinary civil litigation, which is why the parties must comprehensively present and prove their positions. The creditor must demonstrate in the proceedings that their assertions, which led to the enforcement approval, are accurate.
Purpose and Effect of the Action for Impugnation
The action for impugnation aims to declare the enforcement inadmissible insofar as its prerequisites do not exist. It is not directed against the title itself, but exclusively against the enforcement. A judgment granting the claim therefore clarifies that the enforcement may not be carried out with regard to the specific claim or the alleged infringement.
The effect of the action is limited to the respective enforcement of execution. The court terminates the enforcement insofar as the disputed facts impede its enforcement. The obligor thus gains legal certainty as to the extent to which an enforcement is permissible and to what extent it is not.
Procedure
The action for impugnation must be filed with the court that approved the enforcement in the first instance. Depending on the origin of the enforcement title, exceptions exist, for example, in labor law matters or maintenance titles. The action must contain all objections that the obligor can already present at that time. This principle corresponds to the principle of eventual submission: all relevant arguments must be raised simultaneously; later additions are excluded.
In the proceedings themselves, the court exclusively examines those facts that have become relevant after the approval of the execution or that the obligor disputes. The court declares the execution inadmissible as soon as it grants the action. It does not revoke the execution title. The court protects the substantive law and exclusively corrects the concrete enforcement.
Peter HarlanderHarlander & Partner Rechtsanwälte „The action for rescission protects the obligor from an execution that is based on inaccurate or outdated facts.“
Your Benefits with Legal Assistance
Legal representation ensures that all objections are raised in a timely, complete, and formally correct manner. This prevents the loss of important rights, as the action for impugnation should contain all relevant facts simultaneously.
A specialized law firm ensures that unjustified execution steps are quickly terminated and that your legal position remains clearly and permanently secured.
- Safeguarding your rights and interests
- Support in enforcing your claims
- Support throughout the entire proceedings
