Action for Opposition
Action for Opposition
The action for opposition provides the obligor with an effective means of defending against an execution if the claim no longer exists or has changed. It therefore always applies if facts have occurred after the creation of the execution title that cancel or suspend the claim.
The legal basis for this can be found in § 35 EO, which specifies which objections the obligor can raise in the execution proceedings.
Basics of the action for opposition
When granting the execution, the court does not check whether the claim from the title has since expired or whether new circumstances have arisen that change the claim. The execution court only checks the formal title, not its current correctness. As a result, it can happen that the creditor continues to execute, even though the claim no longer exists.
The action for opposition corrects this situation. The obligor actively argues that the claim has changed because he has already fulfilled the claim or because the creditor has granted a deferral. He can also argue that a circumstance has occurred that suspends or eliminates the claim. The action for opposition is therefore directed directly against the claim itself and not against the manner in which the execution is carried out.
The action serves as a judicial review procedure and forces the court to determine whether the claim still exists at the time the action is filed. This gives the obligor the opportunity to quickly and legally stop unjustified executions.
Parties to the action for opposition
In enforcement proceedings, two parties regularly appear:
- the enforcing creditor, who applies for the enforcement
- the obligor, against whom the execution is carried out
In the case of the opposition action, the situation is as follows:
- The plaintiff is the obligor, because he actively opposes the existing claim.
- The defendant is the prosecuting creditor, whose claim is being reviewed.
The court therefore does not merely check the execution, but determines whether the claim itself still exists. The creditor must comprehensively explain why the claim still exists. At the same time, the obligor must present all objections known to him. This creates clear and definitive relationships between the parties.
Purpose and effect of the action for opposition
The action for opposition clarifies whether the claim specified in the title still exists. The obligor can thus prevent a claim from being enforced by execution, even though it has already been paid or is no longer enforceable due to subsequent events. The court corrects the claim itself and thus removes the basis for the execution.
If the court grants the action, the execution enforcement ends immediately. The judgment states that the asserted claim no longer exists. This makes the execution inadmissible to that extent. The obligor thus obtains legal certainty and clarity about which claims are actually still open and which are not.
Procedure
The action for opposition is brought before the court that approved the execution in the first instance. Depending on the type of execution title, however, there may be different jurisdictions, for example in labor law or maintenance law. The obligor must present all objections at the same time. This principle, the so-called Eventualmaxime, ensures that the court can examine all relevant facts in a single procedure.
In the procedure itself, the court only examines those facts that occurred after the title was created or that the obligor could no longer assert in previous proceedings. If the court grants the action, it declares the claim to be extinguished or suspended and terminates the enforcement.
Peter HarlanderHarlander & Partner Rechtsanwälte „The opposition action protects the obligor from execution if the claim itself no longer exists.“
Your Benefits with Legal Assistance
Legal representation ensures that all objections are presented completely and in a legally secure manner. This will help you avoid losing important rights or formal errors delaying the process.
Legal support provides you with security in the proceedings, as your interests are effectively represented.
- Safeguarding your rights and interests
- Support in enforcing your claims
- Support throughout the entire proceedings
