Concept and Legal Nature of the Vollstreckungsabwehrklage
Die Vollstreckungsabwehrklage is a central legal instrument in German civil procedure law. It is regulated in § 767 of the Code of Civil Procedure (ZPO) and serves as an independent procedure to grant the debtor judicial protection against enforcement based on a judgment. With the Vollstreckungsabwehrklage, the debtor can raise objections against the titled claim—that is, against the substantive claim itself—after issuance of the enforcement title, provided these objections only arose or could only be asserted after the conclusion of the last oral hearing in the principal proceedings.
Statutory Basis and Purpose
The legal basis for the Vollstreckungsabwehrklage is found in § 767 ZPO. The purpose of this provision is to allow the debtor to raise subsequent substantive objections against the enforced claim and thereby protect them from unjustified enforcement measures.
§ 767 ZPO – Legal Text (Excerpt):
“With the action, the debtor may assert objections relating to the claim itself, provided they arose only after conclusion of the oral hearing on which the judgment is based, or could only then have been asserted.” (§ 767 para. 2 ZPO)
Requirements and Admissibility of the Vollstreckungsabwehrklage
Filing a Vollstreckungsabwehrklage is subject to certain admissibility requirements, which are outlined below.
Requirements for Admissibility
1. Existence of an Enforcement Title
A Vollstreckungsabwehrklage is only admissible if an enforceable title already exists—such as a final judgment, an enforcement order, or a court settlement.
2. Substantive Objections
The action can only be directed against the titled claim. Only objections concerning the claim itself (substantive objections) are admissible. Procedural objections, such as the invalidity of the title, must be raised through other legal remedies.
3. Subsequent Arising of Objections
The objections must have arisen after the conclusion of the last oral hearing in the principal proceedings or could not have been asserted for other reasons at that time. Objections that could have already been raised in the principal proceedings are generally excluded (so-called rule of preclusion).
4. Legal Interest in Protection
A legitimate interest in bringing the action generally exists when enforcement measures are concretely threatened or have already been initiated.
Types of Objections within the Framework of the Vollstreckungsabwehrklage
The range of objections admissible in a Vollstreckungsabwehrklage is diverse.
Examples of Admissible Substantive Objections
- Fulfillment: The debtor has satisfied the claim after the judgment.
- Release: After completion of the principal proceedings, creditor and debtor have agreed that the claim is to be released.
- Set-off: The debtor sets off a counterclaim that only arose after the judgment.
- Deferral or Settlement: Deferral was subsequently granted or a settlement was reached.
- Occurrence of a Suspensive Condition: The claim is, for example, subject to a dissolving condition and the condition has subsequently occurred.
Objections that concern only the enforcement, but not the titled claim (such as the lack of prerequisites for enforcement), are not admissible.
Jurisdiction and Procedure
The Vollstreckungsabwehrklage must be filed with the court of first instance, that is, usually the court that issued the judgment. The action is to be conducted as contentious proceedings.
Course of the Proceedings
- Filing of the Action: The action must be directed against the creditor of the title.
- Pending Status: Filing the action alone does not halt enforcement (unlike filing for immediate suspension of enforcement under § 775 ZPO).
- Provisional Suspension: The debtor can apply in summary proceedings under § 769 ZPO to suspend enforcement until a decision is reached.
- Judgment: If the court upholds the action, further enforcement is declared inadmissible.
Legal Consequences of the Vollstreckungsabwehrklage
If the action is successful, the court finds that further enforcement from the title, against the debtor, is wholly or partially inadmissible. This decision is binding on the parties and enforcement authorities. If the action is unsuccessful, enforcement can continue unhindered.
Distinctions from Other Legal Remedies
It is essential to distinguish, in both concept and law, the Vollstreckungsabwehrklage from other remedies in enforcement law.
Difference to the Erinnerung (§ 766 ZPO)
The Erinnerung is directed against enforcement measures or their manner, but not against the titled claim itself.
Difference to the Drittwiderspruchsklage (§ 771 ZPO)
This serves to protect third parties who claim that items being enforced against do not belong to the debtor, but to them.
Difference to the Wiederaufnahme des Verfahrens (§§ 578 ff. ZPO)
The Wiederaufnahme is directed against the principal proceedings and aims at removing the binding substantive effect (res judicata) of the judgment, whereas the Vollstreckungsabwehrklage nullifies a claim without setting aside res judicata.
Costs and Legal Remedies
The costs of the Vollstreckungsabwehrklage procedure are determined based on the amount in dispute; this is generally the value of the claim to be defended against in enforcement. The parties are entitled to appeal the judgment (for decisions of the local court: appeal to the regional court; for decisions of the regional court: appeal to the higher regional court).
Vollstreckungsabwehrklage at a Glance
The Vollstreckungsabwehrklage is an important instrument in German civil procedure law that protects the debtor from unjustified or subsequently baseless enforcement. It enables the subsequent consideration of substantive defenses that could not be addressed or fully considered in the primary proceedings. Its substantive and procedural design is specifically tailored to balance the interests of creditor and debtor in the enforcement process.
See also:
- Enforcement
- Code of Civil Procedure (ZPO)
- Action against Third-Party Debtor
- Erinnerung against Enforcement
Sources:
- § 767 ZPO – Vollstreckungsabwehrklage
- Musielak/Voit, ZPO, Commentary on § 767 ZPO
- Thomas/Putzo, ZPO, Commentary on § 767 ZPO
- BeckOK ZPO, § 767 ZPO
Frequently Asked Questions
What requirements must be met to file a Vollstreckungsabwehrklage?
To file a Vollstreckungsabwehrklage (§ 767 ZPO), an enforceable title must first exist against which the debtor seeks protection from enforcement. The action is only admissible if the debtor wants to assert new objections to the titled claim after issuance of the title, i.e., facts arising after the conclusion of the last oral hearing (or after issuance of the enforcement title), or which could only be presented afterwards. Examples include fulfillment of the claim, set-off, release, deferral, or also the onset of limitation. Furthermore, the legal relief sought by the action must be possible to realize: the debtor must not be referred to other remedies, such as the Erinnerung or immediate complaint. Finally, the action is only admissible against the party in whose favor the title was issued.
What deadlines must be observed for the Vollstreckungsabwehrklage?
There is generally no statutory deadline for filing the Vollstreckungsabwehrklage; it can in principle be brought up to the end of the enforcement proceedings. However, for certain objections, assertion “without culpable delay” (§ 767 para. 2 ZPO) applies, as soon as the debtor becomes aware of the basis for objection. Otherwise, the debtor may be excluded due to fault (forfeiture). For special objections—such as the statute of limitations—the general limitation provision may also apply.
Against whom must the Vollstreckungsabwehrklage be directed and which court has jurisdiction?
The action is to be directed against the creditor, who is enforcing or threatens to enforce the title. Jurisdiction lies with the court of first instance, i.e., the court that decided the case in the principal proceedings (§ 767 para. 1 ZPO). If the title results from a default judgment, acknowledgment judgment, or court settlement, this is also the court of first instance. Local jurisdiction follows the general rule, although by agreement of the parties a different local jurisdiction can be determined.
Which objections can be asserted in the context of the Vollstreckungsabwehrklage?
Basically, only substantive objections arising after the last oral hearing in the principal proceedings or after issuance of the enforcement title may be asserted. Typical objections include fulfillment of the claim, release, set-off, fulfillment by third parties, limitation, deferral, or other grounds for extinction. By contrast, objections that could have been raised in the principal proceedings (“precluded” objections) are not admissible. Objections relating to formal errors in the enforcement procedure are also not the subject of the Vollstreckungsabwehrklage, but must be asserted by means of Erinnerung or immediate complaint.
What are the legal consequences of a successful Vollstreckungsabwehrklage?
If the Vollstreckungsabwehrklage is granted, the creditor is prohibited from further enforcement based on the respective title, to the extent that the court finds that the titled claim no longer exists or does not exist in the asserted amount. The result is a judgment on enforcement, which suspends the original title—to the extent acknowledged by the action—and prohibits enforcement. Enforcement acts already conducted before the action was filed are not automatically affected by the judgment; in this case, claims for restitution (e.g., under § 812 BGB) may need to be asserted.
How does the Vollstreckungsabwehrklage relate to other remedies against enforcement?
The Vollstreckungsabwehrklage is an independent instrument for asserting substantive objections and exists alongside other remedies such as the Erinnerung (§ 766 ZPO) and immediate complaint (§ 793 ZPO), which address the manner of enforcement. While the Vollstreckungsabwehrklage relates to the titled claim itself (e.g., extinction of the claim), the Erinnerung and immediate complaint concern enforcement measures that violate enforcement regulations. The remedies are mutually exclusive and must be examined and applied in their specific contexts.
What special formal requirements and costs must be observed with the Vollstreckungsabwehrklage?
The action must be filed in writing with the competent court and must include a statement of claim and a sufficiently detailed account of the grounds for the action. Depending on the amount in dispute, legal representation may be required, especially before the regional courts. The costs of the proceedings are determined by the amount in dispute and are allocated according to the outcome of the case as is customary in civil proceedings. If the debtor prevails, the creditor usually bears the costs; if the debtor loses, they must bear their own and the opposing party’s costs. It is therefore advisable to have the prospects of success carefully assessed before proceeding.
