Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
3rd Subchapter
Enforcement against movable assets
I. General
Section 281
Attachment
(1) Enforcement against movable assets shall be effected by attachment.
(2) Attachment may not be expanded further than is necessary to cover the monetary amounts to be recovered and the costs of enforcement.
(3) The attachment shall not be made where an excess over the cost of the enforcement cannot be expected from the realisation of the attachable objects.
Section 282
Effect of the attachment
(1) Attachment shall result in the body to which the enforcement authority belongs acquiring a lien on the attached object.
(2) The lien shall grant the body in proportion to other creditors the same rights as a lien within the meaning of the Civil Code; liens and preferential rights which are not treated as equivalent to this lien in insolvency proceedings shall have priority.
(3) A lien imposed on the basis of a previous attachment shall have priority other a lien imposed on the basis of a later attachment.
Section 283
Exclusion of warranty claims
Where an object is sold as a result of the attachment, the buyer shall not be entitled to assert warranty claims for a defect of title or for a defect in the items sold.
Section 284
Judgement debtor’s asset disclosure
(1) For the enforcement of a receivable, the judgement debtor shall provide information about his assets to the enforcement authority in accordance with the following provisions where he fails to settle the claim within two weeks of the enforcement authority having called upon him to pay, making reference to the obligation to provide the asset disclosure. In addition he shall state his birth name, date of birth and place of birth. Where the judgement debtor is a legal person or an association, then he shall state his company name, the number of the page in the commercial register and his registered office.
(2) For the purpose of providing information, the judgement debtor shall state all of the assets belonging to him. In the case of receivables, the reason and evidence shall be specified. Furthermore, the following shall be indicated:
1. the disposals for a consideration by the judgement debtor to a related person (section 138 of the Insolvency Code) which he has provided in the last two years prior to the deadline pursuant to subsection (7) below and until provision of the asset disclosure;
2. the services provided free of charge by the judgement debtor which he has provided in the last four years prior to the deadline pursuant to subsection (7) below and until provision of asset disclosure, insofar as they were not related to common occasional gifts of a low value.
Items not subject to attachment pursuant to section 811(1), numbers 1 and 2 of the Code of Civil Procedure need not be included unless an attachment in exchange may be considered.
(3) The judgement debtor shall make a sworn statement to be recorded in writing to the effect that he has provided the details pursuant to subsections (1) and (2) above correctly and completely to the best of his knowledge and belief. Prior to administration of the sworn statement of assets, the judgement debtor shall be instructed of the meaning of the sworn statement assets, especially the consequences under criminal law of making an incorrect or incomplete sworn statement of assets.
(4) A judgement debtor who has provided the asset disclosure described in this provision or in section 802c of the Code of Civil Procedure within the last two years shall be obliged to provide another only where it is to be presumed that his financial circumstances have changed substantially. The enforcement authority shall establish ex officio whether an inventory of assets produced on the basis of the debtor’s asset disclosure has been deposited with the central court of enforcement pursuant to section 802k(1) of the Code of Civil Procedure within the last two years.
(5) The enforcement authority in whose district the judgement debtor’s residence or abode is located shall be responsible for taking down the asset disclosure. Where these preconditions are not met at the enforcement authority which is pursuing the enforcement, the enforcement authority may take down the asset disclosure where the judgement debtor is prepared to provide it.
(6) The summons to the appointment to provide the asset disclosure shall be served on the judgement debtor himself; it may be tied to the deadline pursuant to subsection (1), first sentence, above. The appointment for providing the asset disclosure should not be set before the expiration of one month after service of the summons. An appeal against the order to provide the asset disclosure shall not have the effect of delaying proceedings. The judgement debtor shall provide the documents required for the asset disclosure at the appointment. Upon service of the summons, the judgement debtor shall be instructed about these rules, about his rights and obligations pursuant to subsections (2) and (3) above, about the consequences of failing to keep an appointment without giving notice or of a breach of his obligation to provide information, and about the possibility of entry into the register of debtors when providing the asset disclosure.
(7) At the appointment to provide the asset disclosure, the enforcement authority shall create an electronic document containing the details required pursuant to subsections (1) and (2) above (inventory of assets). These details shall be read out to the judgement debtor before the provision of the sworn statement pursuant to subsection (3) above or reproduced on a screen for inspection. He is to be given a printout on demand. The enforcement authority shall deposit the inventory of assets with the central court of enforcement pursuant to section 802k(1) of the Code of Civil Procedure. The form, recording and transfer of the inventory of assets shall conform to the specifications of the ordinance pursuant to section 802k(4) of the Code of Civil Procedure.
(8) Where the judgement debtor fails to present himself without sufficient justification at the appointment scheduled for the provision of the asset disclosure before the enforcement authority described in subsection (5), first sentence, above or where he refuses without reason to provide the asset disclosure, the enforcement authority pursuing enforcement may apply for the ordering of arrest so as to force provision. The local court in whose district the judgement debtor has his residence or, in the absence of such, has his abode at the time the deadline is set, shall be responsible for the ordering of arrest. Sections 802g to 802j of the Code of Civil Procedure shall apply accordingly. A bailiff shall conduct the arrest of the judgement debtor. Section 292 of this Code shall apply accordingly. Following the arrest of the judgement debtor, the asset disclosure may be taken down by the bailiff responsible pursuant to section 802i of the Code of Civil Procedure where the seat of the enforcement authority described in subsection (5) above is not located in the district of the local court responsible for the bailiff or where it is not possible for the enforcement authority to take down the asset disclosure. The local court decision through which the application of the enforcement authority for an order for arrest is rejected shall be subject to the appeal procedure pursuant to sections 567 to 577 of the Code of Civil Procedure.
(9) The enforcement authority may order the entry of the judgement debtor into the register of debtors pursuant to section 882h(1) of the Code of Civil Procedure where
1. the judgement debtor has failed to meet his obligation to provide the asset disclosure,
2. enforcement pursuant to the content of the inventory of assets would not be suitable for achieving full payment of the receivable on account of which the asset disclosure was demanded or on account of which the enforcement authority, subject to the deadline pursuant to subsection (1), first sentence, above, and the blocking effect pursuant to subsection (4) above, could demand an asset disclosure, or
3. the judgement debtor fails within one month of providing the asset disclosure to pay the receivable on account of which the asset disclosure was demanded. The same shall apply where the enforcement authority, subject to the deadline pursuant to subsection (1), first sentence, above and the blocking effect pursuant to subsection (4) above, may demand an asset disclosure insofar as the judgement debtor fails to pay the receivable within once month of him having being instructed of the possibility of entry into the register of debtors.
The order for entry should be briefly substantiated. It is to be served on the judgement debtor. Section 882c(3) of the Code of Civil Procedure shall apply accordingly.
(10) An appeal against the order for entry pursuant to subsection (9) above shall not have the effect of delaying proceedings. Following the expiry of one month from service, the enforcement authority shall electronically transmit the order for entry to the central court of enforcement pursuant to section 882h(1) of the Code of Civil Procedure together with the data designated in section 882b(2) and (3) of the Code of Civil Procedure. This shall not apply where applications for the granting of suspension of implementation of the order for entry pursuant to section 361 of this Code or section 69 of the Code of Procedure for Fiscal Courts are pending which have prospects of success.
(11) Where entry into the register of debtors pursuant to section 882h(1) of the Code of Civil Procedure has been made, the decisions about the appeals of the judgement debtor against the order for entry by the enforcement authority or by the central court of enforcement pursuant to section 882h(1) of the Code of Civil Procedure shall be transmitted electronically. The form and transfer of the order for entry pursuant to subsection (10), first and second sentences, above as well as the decision pursuant to the first sentence above shall conform to the specifications of the ordinance pursuant to section 882h(3) of the Code of Civil Procedure.
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