Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
III. Enforcement against receivables and other property rights
Section 309
Attachment of a monetary claim
(1) Where a monetary claim is to be attached, the enforcement authority shall issue a written prohibition to the third party debtor against making payments to the judgement debtor, and shall order the judgement debtor in writing to refrain from every disposition over the receivable, especially the sequestration of the receivable (attachment order). This may not be done in electronic form.
(2) The attachment shall be effected where the attachment order is served on the third party debtor. The attachment order to be served on the third party debtor should describe the monetary amount to be recovered only by providing a figure without stating the types of tax and the periods for which it is owed. The debtor shall be informed of service.
(3) In the case of the attachment of a credit balance on the judgement debtor’s account at a credit institution, sections 833a and 850l of the Code of Civil Procedure shall apply accordingly. Section 850l of the Code of Civil Procedure shall apply subject to the proviso that applications are to be submitted to the competent court of enforcement pursuant to section 828(2) of the Code of Civil Procedure.
Section 310
Attachment of a receivable secured by a mortgage
(1) In order to attach a receivable for which a mortgage exists, the mortgage certificate shall be handed over to the enforcement authority in addition to the attachment order. Surrender shall be deemed to have been effected when the enforcement officer removes the certificate. Where the mortgage certificate cannot be issued, the attachment shall be entered in the Land Register; the entry shall, by reason of the attachment order, be made at the request of the enforcement authority.
(2) Where the attachment order is served on the third party debtor prior to surrender of the mortgage certificate or entry of the attachment, the attachment shall be regarded as being effected against the third party debtor upon service.
(3) These provisions shall not apply insofar as claims to ancillary payments described in section 1159 of the Civil Code are being attached. The same shall apply for a debt-securing mortgage in the case of section 1187 of the Civil Code to the attachment of the main receivable.
Section 311
Attachment of a receivable secured by a ship mortgage or registered lien on an aircraft
(1) The attachment of a receivable for which a ship mortgage exists shall be entered into the ship register or ship construction register.
(2) The attachment of a receivable for which a registered lien on an aircraft exists shall be entered into the register for liens on aircraft.
(3) The attachment pursuant to subsections (1) and (2) above shall, by reason of the attachment order, be entered at the request of the enforcement authority. Section 310(2) shall apply accordingly.
(4) Subsections (1) to (3) above shall not apply insofar as the attachment of claims for payments described in section 53 of the Act on Rights in Registered Ships and Ships under Construction and section 53 of the Act Governing Rights in Aircraft are involved. The same shall apply where, in the case of a ship mortgage, the main receivable is attached for a receivable from a debenture to the bearer, from a bill of exchange or on another instrument transferred by endorsement.
(5) Section 106(1), number 3, and 106(5) of the Act Governing Rights in Aircraft shall apply to the attachment of receivables for which a right in a foreign aircraft exists.
Section 312
Attachment of a receivable from endorsable instruments
Receivables from bills of exchange and other instruments which can be transferred by endorsement shall be attached by the enforcement officer taking possession of them.
Section 313
Attachment of regular earnings
(1) A lien which is acquired through the attachment of a salary claim or the attachment of a similar existent receivable against regular earnings shall also extend to amounts that fall due at a later point in time.
(2) The attachment of an official salary shall also cover the income which the judgement debtor draws when moved to another post, when awarded a new post or in the case of salary increase. This shall not apply in the case of a change of employer.
(3) Where the employment relationship ends and the judgement debtor and third party debtor establish such a relationship anew within nine months, the attachment shall extend to the receivable arising from the new employment relationship.
Section 314
Sequestration order
(1) The enforcement authority shall order the sequestration of the attached receivable. Section 309(2) shall apply accordingly.
(2) The sequestration order may be issued in combination with the attachment order.
(3) Where the order is for the sequestration of an attached account balance, held at a financial institution, of the judgement debtor who is a natural person, section 835(3), second sentence, and 835(4) of the Code of Civil Procedure shall apply accordingly.
(4) Where the order is for the sequestration of attached non-recurring remuneration of a judgement debtor who is a natural person for personally rendered work or services or other income which is not wages, section 835(5) of the Code of Civil Procedure shall apply accordingly.
Section 315
Effect of the sequestration order
(1) The sequestration order shall replace the judgement debtor’s formal declarations upon which, under civil law, the entitlement to sequester depends. It shall also suffice in the case of a receivable for which a mortgage, ship mortgage, or a registered lien on an aircraft exists. To the benefit of a third party debtor, a sequestration order unjustly issued shall be considered legal vis-à-vis the judgement debtor until the order is cancelled and the third party debtor is informed hereof.
(2) The judgement debtor shall be obliged to provide the information required to enforce the receivable and to release the available documents regarding the receivable. Where the judgement debtor fails to provide information, he shall be obliged at the enforcement authority’s request to have this information recorded and to make a sworn statement about the information he has provided. The enforcement authority may amend the sworn statement of assets according to the situation. Section 284(5), (6), and (8) shall apply accordingly. The enforcement authority may have the documents removed by the enforcement officer or force their return pursuant to sections 328 to 335.
(3) Where it is not possible to locate the documents, the judgement debtor shall, upon request by the enforcement authority, make a sworn statement, to be recorded in writing, that he is not in possession of the documents nor does he know where these documents are. Subsection (2), third and fourth sentences, above shall apply accordingly.
(4) Where a third party is in possession of the document, the enforcement authority may also assert the judgement debtor’s claim for return.
Section 316
Third party debtor’s obligation to submit a declaration
(1) At the request of the enforcement authority, the third party debtor shall declare the following to the authority within two weeks, calculated from service of the attachment order:
1. whether and to what extent he recognises the receivable as justified and is prepared to pay,
2. whether other persons have claims against the receivable and what these claims are,
3. whether the receivable has already been attached for other creditors, and on account of which claims,
4. whether, with regard to the account of which the credit balance has been attached, the exemption of the credit balance from attachment has been ordered pursuant to section 850l of the Code of Civil Procedure within the last twelve months, and
5. whether the account of which the credit balance has been attached is an account with protection from attachment within the meaning of section 850k(7) of the Code of Civil Procedure.
The third party debtor’s declaration regarding number 1 above shall not be considered an acknowledgement of debt.
(2) The request to submit this declaration may be included in the attachment order. The third party debtor shall be liable to the enforcement authority for the damage incurred from the failure to fulfil his obligation. The third party debtor may be enjoined to submit the declaration through a coercive fine; section 334 shall not apply.
(3) Sections 841 to 843 of the Code of Civil Procedure shall apply.
Section 317
Other form of realisation
Where the attached receivable is conditional or aged or the sequestration thereof difficult, the enforcement authority may order that it be realised by other means; section 315(1) shall apply accordingly. The judgement debtor must be consulted beforehand insofar as an announcement outside the territory of application of the law or a public announcement is not required.
Section 318
Claims for the return or transfer of items
(1) Apart from sections 309 to 317, the provisions below shall apply to the enforcement against claims for the return or transfer of items.
(2) When attaching a claim concerning a moveable item, the enforcement authority shall order that the item be returned to the enforcement officer. The item shall be disposed of in the same way as an attached item.
(3) When attaching a claim concerning rights to an immovable item, the enforcement authority shall order that the item be returned to a trustee which the local court lex rei sitae appoints upon application by the enforcement authority. Where the claim is directed towards the transfer of ownership, the item shall be conveyed to the trustee as representative of the judgement debtor. Upon transfer of ownership to the judgement debtor, the body to which the enforcement authority belongs shall obtain a debt-securing mortgage for the receivable. The trustee shall approve the registration of the debt-securing mortgage. Enforcement against the item returned shall, according to the provisions on enforcement, be effected against the rights to an immovable item.
(4) Subsection (3) above shall apply accordingly where the claim concerns a ship registered in the ship register, a ship under construction or floating dock registered in the ship register or that may be registered in this register, or an aircraft registered in the aircraft register or, following deletion in the aircraft register, is still registered in the register for liens on aircraft.
(5) The trustee shall be granted compensation upon application. The compensation may not exceed the remuneration to be set according to the Ordinance on Official Receivers.
Section 319
Exemption of receivables from attachment
Prohibitions and restrictions under sections 850 to 852 of the Code of Civil Procedure as well as other legal provisions on the attachment of receivables and claims shall apply mutatis mutandis.
Section 320
Multiple attachment of a receivable
(1) Where a receivable is attached by multiple enforcement authorities or by an enforcement authority and a court, sections 853 to 856 of the Code of Civil Procedure and section 99(1), first sentence, of the Act Governing Rights in Aircraft shall apply accordingly.
(2) Where there is no local court with jurisdiction pursuant to sections 853 and 854 of the Code of Civil Procedure, deposit shall be lodged with the local court in whose district the enforcement authority to first have its attachment order served on the third party debtor is located.
Section 321
Enforcement against other property rights
(1) The above provisions shall apply accordingly to enforcement against other property rights which are not the subject of enforcement against immovable assets.
(2) Where there is no third party debtor, attachment shall be effected where the order to refrain from every disposition over the right is served on the judgement debtor.
(3) An inalienable right, unless otherwise stipulated, shall be attachable to the extent that the exercise of the right may be entrusted to another person.
(4) The enforcement authority may, in the case of enforcement against inalienable rights, the exercise of which may be entrusted to another person, issue special orders and, in the case of enforcement against usufructs in particular, order administration; in this case, attachment shall be effected by surrendering the item to be used to the administrator insofar as it has not already been effected through service of the attachment order.
(5) Where disposal of the right is permissible, the enforcement authority may order the disposal.
(6) The provisions on enforcement against a receivable for which a mortgage exists shall apply to enforcement against Land charges or an annuity charge.
(7) Sections 858 to 863 of the Code of Civil Procedure shall apply mutatis mutandis.
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