GERMANY Law and Practice Contributed by: Christian Strasser, Thomas Wambach and Yannick Greimann, HEUKING
2.4 Post-Judgment Procedures for Determining Defendants’ Assets
• Proceedings under Section 766 of the ZPO ( Voll- streckungserinnerung ) can be initiated by the creditor, the debtor, and a third party. This remedy allows the parties to assert procedural errors of the enforcement body and is reduced to formal aspects. • Only the debtor can initiate the proceedings under Section 767 of the ZPO ( Vollstreck- ungsabwehrklage ). This procedure aims to elimi - nate the enforceability of the title due to changed substantive grounds. With the enforcement defence action, the debtor can assert a legal objection that destroys or inhibits the right to the claim titled in the judgment if that objection arose after the conclusion of the oral proceedings. • The procedure under Section 771 of the ZPO ( Drit- twiderspruchsklage ) allows a person not previously involved in the court proceedings (a third party) to object to the enforcement with the argument that the attached property does not belong to the debtor but to them (the third party). 2.6 Unenforceable Domestic Judgments According to the rules of the ZPO, the enforcement of a declaratory judgment in Germany is not possible. 2.7 Register of Domestic Judgments There is no central register of judgments in Germa - ny; however, many judgments are available online in anonymised form. These are judgments from all instances and cover all areas of law. All judgments and court orders of the highest courts can be reviewed online free of charge and in anonymised form. On the other hand, there is a debtors register pursuant to Section 882b of the ZPO; this is kept at the Central Enforcement Court ( zentrales Vollstreckungsgericht ) of each federal state. The prerequisite for entries within the context of enforcement is that one of the following circumstanc - es applies: • the debtor has not fulfilled their obligation to sub - mit a list of assets (cf Section 802c of the ZPO); • the debtor lacks income and assets according to the submitted list of assets, and for this reason, enforcement is not likely to prove successful; or
Germany has no post-judgment procedures to deter - mine which assets the debtor owns and where they are located. Clarification is a matter for the creditor, and obtaining information in advance is the cornerstone of the enforcement procedure. The means of obtain - ing the required information are described under 1.1 Options to Identify Another Party’s Asset Position . 2.5 Challenging Enforcement of Domestic Judgments According to the ZPO, first-instance judgments are in principle only provisionally enforceable, and the debtor can partially avert enforcement by providing a security deposit. However, this protection against enforcement by providing a security deposit can be undermined by the creditor if they also deposit secu - rity. This serves to secure and compensate for dam - ages incurred by the debtor due to the enforcement in the event of a reversal of the judgment in the second instance. The unsuccessful debtor in the court proceedings may be entitled to appeal against the judgment, but such an appeal does not have a suspensory effect. Enforcement can therefore be initiated by the creditor despite the filing of the appeal and continue provision - ally. The debtor has to file an appeal within one month after the judgment has been delivered to the parties – if no appeal is filed within that period, the judgment becomes final and binding upon the parties, and the enforcement is then no longer pursued provisionally. If the debtor appeals against the judgment, Section 719 of the ZPO provides that the court may, upon request of the debtor, inter alia, order that enforce - ment is temporarily suspended with or without the provision of security. The decision is at the discre - tion of the court; if the court orders the suspension of enforcement, in most cases, it is only granted subject to the provision of security by the debtor. Legal remedies against execution are limited and restricted to those provided for in Sections 766, 767 and 771 of the ZPO. Each remedy is limited to a spe - cific, legally standardised constellation. These are as follows:
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