Definition and Significance of the Enforcement Judgment
Ein Enforcement Judgment is a final and binding decision of a court that forms the basis for compulsory enforcement. The aim of such a judgment is to enable a creditor to enforce their titled claim against the debtor through state enforcement measures. The enforcement judgment thus constitutes one of the central enforcement instruments under the provisions of the Code of Civil Procedure (ZPO).
Legal Basis of the Enforcement Judgment
Enforcement Instruments According to the Code of Civil Procedure (ZPO)
The Code of Civil Procedure regulates the requirements and effects of enforcement instruments in §§ 704 et seq. ZPO. According to § 704 ZPO, compulsory enforcement is only permissible on the basis of a final judgment, a judgment declared provisionally enforceable, or other acts of titling. The enforcement judgment is among the most important of these instruments.
Distinction from Other Enforcement Titles
An enforcement judgment must be distinguished from other judgments and orders that can also serve as enforcement titles, such as:
- Enforcement order after dunning procedure (§ 794 para. 1 no. 4 ZPO)
- Order on the determination of costs (§ 794 para. 1 no. 2 ZPO)
- Judicial settlements (§ 794 para. 1 no. 1 ZPO)
- Notarial deeds with submission clause (§ 794 para. 1 no. 5 ZPO)
The classic enforcement judgment, however, is always based on a contentious hearing and decision by a court.
Requirements of an Enforcement Judgment
Final Judgment
For compulsory enforcement, § 704 ZPO generally requires a final judgment. A final judgment is a conclusive court decision that substantively resolves the subject of the dispute. This includes, among others:
- Judgments for performance (e.g., to pay a specified sum of money)
- Judgments for delivery
- Injunction judgments
Res Judicata and Provisional Enforceability
The enforcement judgment must either be final and binding (§ 705 ZPO) or declared provisionally enforceable (§§ 708 et seq. ZPO). Until it becomes final, enforcement is often possible upon provision of security (see §§ 709, 710 ZPO).
Res Judicata
Res judicata means that the judgment is no longer subject to appeal, so that the matter in dispute between the parties is definitively resolved and cannot be litigated again.
Provisional Enforceability
Many judgments are provisionally enforceable before they become final. The requirements for how and when provisional enforceability can be ordered are set out in §§ 708 to 720a ZPO. The debtor may, under certain circumstances, file for protection against enforcement (§§ 711, 712 ZPO).
Effects and Scope of the Enforcement Judgment
Binding Effect and Ancillary Decisions
The enforcement judgment creates what is known as substantive res judicata and is binding on the parties with respect to its subject matter. Ancillary decisions, such as the cost decision, are part of the judgment and can also be enforced.
Title Effect and Enforcement Clause
For compulsory enforcement, the judgment alone is not sufficient. An enforcement clause (§ 724 ZPO) is required, unless the law provides for an exception (e.g., provisionally enforceable titles under § 708 nos. 1-9 ZPO). In addition, the judgment must generally be available in an official or certified copy.
Importance of the Amendment of the Title
If there is a change in ownership (e.g., by assignment), a so-called amendment of the title is required (§§ 727 et seq. ZPO).
Further Requirements
In certain cases, service of the judgment on the debtor is a prerequisite for compulsory enforcement, so that enforcement may only be initiated once the enforceable copy has been received by the debtor (§ 750 ZPO).
Types and Scenarios of the Enforcement Judgment
Judgment for Performance
The classic enforcement judgment is a judgment for performance that grants the creditor a specific claim, such as for payment, delivery, or injunction, which can then be enforced.
Judgment of Declaration and Judgment Creating or Altering Legal Relations
Judgments of declaration and judgments creating or altering legal relations, if they only declare or constitute a legal relationship (e.g., divorce), are generally not enforceable. Exceptions exist if the judgment of declaration simultaneously contains an obligation to perform.
Partial Judgment and Conditional Judgment
A partial judgment is enforceable concerning the part decided, while a conditional judgment is enforceable only regarding the pronouncement not subject to condition.
Special Aspects of Enforcement from Judgments
Interim Measures and Security
The extent to which provisional enforceability is granted and what securities may be required depends on the circumstances of the individual case and the applications of the parties.
Limits of Enforcement
Compulsory enforcement from an enforcement judgment is inadmissible after 30 years have passed (§ 197 para. 1 no. 3 BGB).
Countermeasures by the Debtor
The debtor can prevent or resist compulsory enforcement by means of protection against enforcement (§§ 765a, 767 ZPO) or by objections in subsequent proceedings.
International Aspects
Recognition and Enforcement of Foreign Judgments
Enforcement of foreign enforcement judgments is governed by European law (e.g., Brussels Ia Regulation) or international treaties. Recognition and enforceability of foreign judgments in Germany regularly require a special enforcement procedure.
Legal Protection in the Enforcement of Judgments
Action to Set Aside Enforcement
With the action to set aside enforcement (§ 767 ZPO), subsequent objections to the titled claim can be asserted, for example, if the claim has expired due to fulfillment after the judgment.
Remonstrance and Complaint
Against measures of compulsory enforcement, §§ 766, 793 ZPO provide remedies such as remonstrance and complaint.
Summary
The enforcement judgment is the classic and most important state enforcement instrument in German civil law. It requires a final or provisionally enforceable final decision of a court, which defines the creditor’s claim in substance and, by means of an enforcement clause and appropriate service, renders it enforceable. The legal foundations are found in §§ 704 et seq. ZPO. The enforcement judgment is therefore the pivotal point for the enforcement of civil law claims by state means within the judicial determination procedure.
Frequently Asked Questions
What requirements must be met for the enforceability of an enforcement judgment?
An enforcement judgment is only enforceable if it meets the formal and substantive legal requirements. First, the judgment must be either final or at least provisionally enforceable. Finality occurs when no ordinary legal remedies can be filed against the judgment. In many cases, however, provisional enforceability can be ordered by the court even before the expiration of the time limit for legal remedies, for example against the provision of security according to § 709 ZPO. In addition, an enforceable copy of the judgment issued by the court with the appropriate enforcement clause is generally required (§ 724 ZPO). Excluded from this are enforcement judgments that, by law, are enforceable without a clause. If all conditions are met, the creditor can take enforcement action against the debtor.
Can an appeal still be lodged against an enforcement judgment?
Whether an appeal against an enforcement judgment is permissible depends on the procedural stage. Before the judgment becomes final, the parties generally have the legal remedies provided by law, in particular appeal and revision (§§ 511 et seq. ZPO and §§ 542 et seq. ZPO). Once the judgment becomes final, no ordinary legal remedies are available. In certain cases, extraordinary remedies such as the action for restitution (§ 580 ZPO) or the reopening of proceedings remain admissible, but only under narrowly defined statutory conditions. In addition, the debtor may raise objections to the enforcement via the action to set aside enforcement (§ 767 ZPO), provided that the objections arose after the judgment or can only be considered at that point.
What types of compulsory enforcement are possible with an enforcement judgment?
An enforcement judgment is, in principle, suitable to pursue any type of compulsory enforcement. These include distraint of movable property of the debtor (§ 803 ZPO), attachment of claims (§ 828 ZPO), compulsory enforcement against real estate (land charge, forced sale, or compulsory administration under §§ 866 et seq. ZPO, §§ 857 et seq. ZPO and § 864 ZPO), and — if the judgment requires the debtor to render something other than money — enforcement of acts, forbearance, or omissions (§§ 887–890 ZPO). It is crucial that the enforcement judgment contains an enforceable obligation and is issued by a German ordinary court.
In what cases can enforcement from an enforcement judgment be suspended?
Suspension of enforcement can occur in several ways. On the one hand, enforcement can be stayed upon application if, for instance, a legal remedy with suspensive effect has been lodged (§ 719 ZPO). Another reason for suspension is the filing of an action to set aside enforcement by the debtor if new objections to the titled claim have arisen. Furthermore, a preliminary injunction can also cause suspension, for example, in connection with preliminary legal protection proceedings. Enforcement can also be suspended under § 775 ZPO, e.g., by presenting a court settlement or other titles evidencing satisfaction of the claim.
Who may carry out the enforcement based on an enforcement judgment?
In principle, enforcement can only be carried out by the person who appears as creditor in the enforcement judgment (entitled under the title). However, they may be represented by a statutory representative, an authorized lawyer, or another appointed representative. In particular scenarios, the legal successor of the original creditor may also continue enforcement if enforceable evidence of the transfer of rights is provided (§ 727 ZPO). Bailiffs and enforcement courts are responsible for executing the respective measures.
What must be observed when serving an enforcement judgment on the debtor?
For enforcement to be lawfully initiated, in most cases a serveable copy of the enforcement judgment must be served on the debtor (§ 750 ZPO). This service serves, in particular, to inform the debtor of the content of the title and the impending enforcement. Service must generally occur before the commencement of enforcement measures, or at least simultaneously. In certain exceptional cases — such as imminent danger — enforcement may be initiated without prior service, but it must then be caught up without delay. Service thus establishes the formal basis for any further act of compulsory enforcement.
What options does the debtor have to defend against compulsory enforcement from an enforcement judgment?
The debtor has various options to defend themselves against enforcement from an enforcement judgment. This can primarily be done through an action to set aside enforcement (§ 767 ZPO), which is admissible if objections to the titled claim exist that arose after the judgment or can only be considered thereafter. In addition, a remonstrance (§ 766 ZPO) can be filed against the manner of enforcement if, for example, procedural errors have occurred. If the creditor’s legitimacy is impeded or complicated, the debtor may also assert an objection to the enforcement clause (§ 732 ZPO). General remedies are also available, such as preliminary injunctions or constitutional complaints in cases of serious violations of fundamental rights.
