Execution proceedings
Execution proceedings
Anyone who has a claim against another person may not enforce it on their own authority. The prohibition of self-help means that no one may simply obtain what is owed themselves, even if they are in the right. Instead, the claim must first be established in court proceedings. The claim is established in an enforcement title. This includes, for example, payment orders, judgments, orders or court settlements.
However, an enforcement title still does not entitle the creditor to take action against the debtor himself. However, he may demand that the state enforce the claim by compulsion. This is precisely the purpose of enforcement proceedings.
The enforcement procedure is the orderly procedure in which courts and bailiffs act to actually recover monetary claims or other claims. The creditor does not receive his own right of coercion, but the right to apply for state enforcement. Only then does the established claim become actually enforceable.
Types of Enforcement
How enforcement proceedings are carried out in concrete terms depends on which claim is to be enforced. The law distinguishes between two major areas. In the enforcement of monetary claims, the aim is to recover a sum of money. It includes all measures by which the debtor’s assets are realised or skimmed off in order to settle the outstanding monetary claim.
In other cases, however, a specific action must be enforced or the debtor must tolerate or refrain from doing something. This concerns, for example, evictions, surrender of objects or the compulsory enforcement of an obligation that does not consist of money.
The multitude of types of enforcement exists because different types of claims and assets each require their own, suitable enforcement instrument.
Enforcement for monetary claims
The enforcement of monetary claims is further subdivided because different assets may be affected. If immovable property is accessed, the compulsory creation of a lien, the administration of a property or the compulsory auction may be considered.
If movable property is accessed, a distinction is made between three central forms. This includes enforcement against movable tangible property, the so-called chattel enforcement. Enforcement against the debtor’s monetary claims, such as his salary, is also possible. Finally, any other property rights can also be accessed if they can be realised.
Peter HarlanderHarlander & Partner Rechtsanwälte „The enforcement procedure ensures that claims not only exist, but are also realised.“
Parties in Execution Proceedings
In enforcement proceedings, two main parties face each other. On the one hand, there is the prosecuting creditor. He is the person who has an enforceable claim and wants to enforce it by means of an enforcement application. On the other side is the obligor. He is the person against whom the enforcement is directed because he has not voluntarily provided the owed service.
These two parties form the core of every enforcement proceeding, regardless of which type of enforcement is chosen or which assets are affected.
In addition to the creditor, debtor and court, other bodies can play an important role in the enforcement proceedings. In the case of chattel enforcement, the bailiff becomes active. He is responsible for finding, seizing and, if necessary, securing movable property of the debtor. In the case of salary enforcement, on the other hand, the employer comes into play as a third-party debtor. He must check which part of the income is seizable and transfer the corresponding amount to the prosecuting creditor. Whether and which additional party is involved therefore always depends on the type of enforcement.
Process of enforcement proceedings
It always starts with a formal enforcement application by the creditor. The court only becomes active with this application. The court checks whether the application is complete and legally correct. If this is not the case, the application will be returned for improvement. The creditor then has the opportunity to submit missing information or correct errors within 14 days.
Once the court has approved the application, enforcement begins. Depending on the type of enforcement, bailiffs, third-party debtors, land registry courts or other bodies become active in order to carry out the specific measure.
The enforcement procedure ends by:
- successful execution, if the owed service has been brought in or realised
- formal termination, if the procedure cannot be continued for factual or legal reasons
Simplified approval procedure
The court may decide on an enforcement application in the so-called simplified approval procedure if certain legal requirements are met. This procedure is only intended for monetary claims and is intended to enable rapid approval without extensive examination.
A prerequisite is, among other things, that the claim does not exceed an amount of 50,000 euros in capital. In addition, no further document may be required for the approval, and the creditor must rely on a domestic or recognised foreign enforcement title.
Objection to the approval
If the enforcement is approved in the simplified approval procedure, the obligor may lodge an objection. However, such an objection is only possible within narrow limits. The debtor can only assert that a suitable enforcement title is missing or that the enforcement title does not match the information in the enforcement application. The deadline for the objection is 14 days from the date of service of the written copy of the approval decision. A specific form is not required. The objection does not have to be signed by a lawyer.
Your Benefits with Legal Assistance
Legal support ensures that the enforcement application is submitted completely, correctly and on time and is not delayed by unnecessary improvement procedures. A lawyer assesses which enforcement measures are most promising in the specific case and coordinates their efficient implementation.
Legal support ensures that no steps are overlooked and that a quick response is given in the event of difficulties, such as objections from the debtor or the need for further applications.
- Support throughout the entire enforcement procedure
- Support in enforcing your claims
- Safeguarding your rights and interests vis-à-vis all parties involved
Sebastian RiedlmairHarlander & Partner Attorneys „A claim is only as strong as its enforcement. The enforcement procedure ensures this. “
