Definition and Clarification of the Concept of Arrest Grounds
The arrest ground is a central element of German civil procedural law and refers to the legal requirements under which a court may order an arrest—a provisional securing measure to preserve property rights. The arrest ground is regulated in Section 917 of the Code of Civil Procedure (ZPO) for proprietary arrest and in Section 918 ZPO for personal arrest.
In a broader sense, arrest ground refers to the fact or actual circumstances that justify the concern that, without immediate securing measures, enforcement of a claim or its execution could be thwarted or significantly impeded. Thus, the arrest ground forms the legal basis for any arrest order and serves to protect the creditor against disadvantageous changes in the debtor’s assets.
Statutory Foundations
Section 917 ZPO – Proprietary Arrest
Section 917 (1) ZPO stipulates that proprietary arrest is permissible to ensure enforcement regarding a monetary claim or a claim that may be converted into a monetary claim, if it is to be feared that, without the order of arrest, enforcement would be thwarted or considerably impeded.
Section 918 ZPO – Personal Arrest
Section 918 ZPO regulates personal arrest, which can be imposed to secure enforcement of claims for an act, forbearance, or omission, if there is reason to believe that the debtor intends to evade enforcement.
Requirements and Preconditions for the Arrest Ground
Concern of Frustration or Impediment
The most important arrest ground is the concern that subsequent enforcement may be frustrated or significantly impeded. It is sufficient if, based on concrete facts, a serious possibility exists that the debtor will take actions that could frustrate or impede enforcement of the entitled claim.
Concrete examples of such concerns include dissipating assets, transferring assets abroad, impending insolvency, or concealing assets.
Duty of Presentation and Substantiation
The existence of an arrest ground must be conclusively presented by the applicant and substantiated in accordance with Section 920 (2) ZPO. It is not sufficient to make general assumptions; instead, facts must be presented that provide a concrete probability of danger.
Arrest Ground and Substantive Legal Claim
A distinction must be made between the arrest ground and the arrest claim. While the arrest claim refers to the substantive right to be secured, the arrest ground represents the specific threat situation that justifies ordering the securing measure.
Significance of the Arrest Ground in Practice
The arrest ground is of considerable importance in judicial decision-making. A judicial arrest order is only lawful if the court clearly affirms both the arrest claim and the arrest ground. If the arrest ground is not present or is not adequately substantiated, the application for arrest must be rejected.
The requirements for the presentation and substantiation of the arrest ground are sometimes strict in case law. Practical examples show that courts may especially assume an arrest ground in cases of account movements, asset shifts, or imminent loss of tangible assets.
Types of Arrest and Their Specific Arrest Grounds
Proprietary Arrest
In proprietary arrest, the focus is particularly on whether the enforcement of a monetary claim is at risk. Typical grounds for arrest here include selling or transferring assets before an enforceable title is obtained.
Personal Arrest
In personal arrest, the main concern is that the debtor is attempting to evade enforcement by absconding or becoming untraceable. Concrete indications, such as unexplained absences or changes of residence, are sufficient as grounds for arrest.
Distinction from Other Securing Instruments
The arrest ground must be distinguished from the reason for injunction in preliminary injunction proceedings. While for the arrest ground an abstract risk to enforcement is sufficient, the reason for injunction requires an urgent or emergency situation regarding a specific claim.
Unlike the securing mortgage, security transfer of ownership, or distraint lien, arrest as a judicial measure always requires a specific arrest ground based on a concrete risk situation.
Procedure and Course of the Arrest Order
Application for Arrest
An application for arrest must specifically designate both the arrest ground and the claim to be secured, and plausibly present the facts that establish the risk situation.
Substantiation
The facts supporting the presence of an arrest ground must be substantiated. Permissible means of substantiation include, for example, affidavits, documents, or witness statements.
Judicial Decision
The court independently examines whether an arrest ground is present and, if the application for arrest is successful, may order the arrest by issuing an arrest warrant. The arrest warrant becomes effective immediately and may be issued without an oral hearing if urgency exists.
Revocation and Elimination of the Arrest Ground
If, after the arrest is ordered, the arrest ground no longer persists, the debtor may apply under Section 926 (1) ZPO for the arrest to be lifted. If the debtor succeeds in disproving or eliminating the alleged risk situation (for example, by providing security), the arrest ground ceases to exist and the securing measure must be lifted.
Legal Protection and Remedies
An immediate appeal pursuant to Sections 567 et seq. ZPO is admissible against the order or rejection of an arrest. The arrest ground is subject to full judicial review in the appeal proceedings. The decision is made based on the record, without a renewed oral hearing, unless the court considers such to be necessary.
Summary
The arrest ground is an indispensable prerequisite for the ordering of a judicial arrest in German civil procedural law. It specifies the risk that, without immediate securing measures, enforcement could be thwarted or significantly impeded. The strict requirements for substantiation and the narrow interpretation by courts ensure that arrest, as a significant restriction of the debtor’s rights, is only permissible in genuinely threatening situations.
Frequently Asked Questions
When is an arrest ground assumed under German law?
An arrest ground is generally assumed if there is reason to believe that, without an arrest, enforcement of the future claim appears to be at risk. According to Section 917 (2) ZPO, this is particularly the case if it is feared that the debtor will take measures to make future enforcement more difficult or impossible. Classic examples include intended transfer of assets abroad, concealing or selling assets in order to evade future enforcement. The creditor must present and substantiate concrete facts that establish the arrest ground. Mere concerns or general assumptions are not sufficient according to established case law. The arrest ground serves exclusively the purpose of securing enforcement and must be strictly separated from any substantive legal claims.
What evidence is required for the arrest ground?
The applicant bears the burden of presenting and substantiating the existence of an arrest ground. The requirements for substantiation are governed by Section 294 ZPO. This means the creditor must present conclusive facts and substantiate these with evidence such as affidavits, documents, or witnesses. Absolute certainty is not required, but substantial and concrete indications—such as the intended shift of assets or already undertaken measures to conceal assets—are necessary. Indications are sufficient if they justify the conclusion that enforcement is at risk.
How does the arrest ground differ in proprietary and personal arrest?
In proprietary arrest (Section 916 ZPO), the arrest ground relates to securing a claim for money or monetary-equivalent claims and requires that enforcement is endangered by shifting of assets. In contrast, personal arrest (Section 927 ZPO) concerns personal liberty, for example, to secure a claim for the release of a person or provision of a service. Here, the arrest ground is met if it is expected that the person intends to evade the proceedings or enforcement, for instance by absconding or going into hiding. The legal standards for substantiation are similarly strict in both cases.
What role does the arrest ground play in relation to the principal case?
The arrest ground must be distinguished from the arrest claim, which relates to the principal case. While the arrest claim is based on the substantive right and establishes the creditor’s position, the arrest ground concerns only the need for provisional legal protection—that is, the risk of frustration or significant impediment of enforcement. The court’s examination expressly relates to both requirements. Even if the arrest claim exists, the court must independently and separately examine and determine the arrest ground.
Is the arrest ground also required for public or governmental debtors?
As a rule, the arrest ground also applies to public law entities as debtors. However, it is recognized that in such cases, the risk of asset transfer or frustration of enforcement is generally excluded, since, by law, they are subject to orderly financial administration. Therefore, arrest against authorities or public entities is only permissible in exceptional cases where there are special and concrete indications for an arrest ground.
How is the arrest ground treated in an international context?
In international contexts (for example, where debtors may transfer assets abroad or are domiciled abroad), the arrest ground often takes on increased importance. The courts in these cases require indicative evidence or a concrete risk that, due to lack of or impeded enforcement possibilities abroad, arrest is necessary for securing purposes. The creditor must therefore particularly set out why equivalent security for future enforcement is not available abroad.
Are arrest grounds evaluated differently in family law?
Within the context of family law, particularly in claims for maintenance or equalization of accrued gains, an arrest ground may be assumed more readily because there is more often a risk that assets will be withdrawn from access. Nevertheless, in these proceedings too, concrete circumstances indicating a risk to enforcement must be substantiated. Courts often address this by means of especially rapid and summary examination in expedited (interim) proceedings.
