The arrest procedure: The application and the consequences Arrest

Arrest proceedings are urgent proceedings that are regulated in the Code of Civil Procedure (ZPO). It serves to secure the foreclosure of either a monetary claim or the right to a monetary claim. In order for an arrest procedure to be admissible, however, certain conditions must be met. Find out more about this and the course of the entire procedure here.

What exactly is the arrest procedure?

In order to have a claim against a debtor enforced, the creditor needs a judgment as an enforcement title so that he can initiate enforcement. However, the necessary process can drag on for a long time, especially in the case of a cumbersome taking of evidence. It can happen that due to the length of the process, there is a risk that the creditor will be impaired in enforcing his claims or even prevented from doing so - for example because the debtor has reduced his assets in the meantime or sold the item to be returned.

In order to protect creditors in such a situation, German legislation has created two options: arrest and injunction.

• The attachment serves to secure monetary claims (or such claims that can become monetary claims).
• The injunction serves to secure other claims.

The attachment is in turn divided into two cases: In the case of an attachment in rem, assets or rights are confiscated in order to secure the creditor's claims. Personal arrest restricts the debtor's freedom of movement in order to ensure that the creditor can assert his claims after successful proceedings.

Important: With arrest, the focus is on securing, not gratification. This means: Assets or rights are secured in such a way that the creditor can assert his claims at a later point in time. However, the arrest proceedings are not the actual enforcement of these claims - a separate recognition process is necessary for this. Accordingly, stricter rules apply to the latter than to the arrest proceedings. In arrest proceedings, for example, it is sufficient to substantiate the claims.

Arrest: legal bases and requirements

The Code of Civil Procedure forms the legal basis for the attachment application and the attachment proceedings. In § 916 of the ZPO the right to arrest is regulated, § 930 of the ZPO regulates the enforcement of movable assets and claims - including the attachment of both monetary amounts and things as a security measure.

Section 920 of the Code of Civil Procedure regulates which requirements the application for attachment must meet:

1. The application for attachment must state clearly whether the creditor is applying for attachment in rem or personal attachment.
2. The application for attachment must specify the exact attachment claim - for example, the requested amount or monetary value.
3. The application for attachment must also contain a reason for attachment. This means that there is an objectively justified presumption that the debtor may want to prevent enforcement, making it necessary to secure the claim. Only then can it be assumed that there is actually an urgency.

Example of fact 3: The creditor does not yet have an enforcement title for his claim against the debtor. During the proceedings, it becomes clear that the debtor intends to sell the assets that could be used to settle the claim - possibly with significant financial losses as a result. In this case, there may be grounds for arrest.

The exact course of the arrest procedure

In order to be able to initiate attachment proceedings, the creditor must first have an attachment claim. This can arise if the creditor has a claim (e.g. a claim for payment) but no enforcement order against the debtor. As described above, a reason for arrest is also necessary so that there is an urgency.

If these requirements are met, the creditor can now file an application for attachment. The court will respond in one of the following ways:

1. It can reject the application for attachment.
2. It can ask the other side to comment within a certain period of time.
3. It can set a court date for a decision on the application.
4. It can immediately issue the arrest warrant.

The competent district court is responsible for ordering the arrest. From this point on, the creditor has the opportunity to initiate enforcement. To do this, he must submit an application for enforcement, either in writing to the distribution office for bailiff orders or verbally to the legal application office of the competent district court.

The bailiff is responsible for serving the arrest warrant and the attachment order. He also assumes the seizure of movable property (in the case of a physical arrest). If property rights are to be attached, this is taken over by the enforcement court. Real estate owned by the debtor, on the other hand, is directly encumbered with a security mortgage in the land register.

In serious cases, personal arrest can take the form of imprisonment. In less serious cases, the debtor's freedom of movement is otherwise restricted, for example by having his identity papers confiscated. The aim is that the debtor cannot escape enforcement.

Would you like to file or ward off an application for arrest?

We help when things have to be done quickly: The law firm mcintire partners can be reached by emergency call 24 hours a day, 7 days a week. We will represent you in all courts nationwide and, if you wish, also in the EU, and with our many years of experience, we will use our many years of experience to advocate for or against your application for arrest. Contact us now!