Definition and Legal Basis of Suspension of Enforcement
Die Suspension of Enforcement refers, under German law, to the (temporary or permanent) termination, interruption, or suspension of an already initiated state enforcement proceeding by judicial or administrative decision. The primary purpose is to protect debtor interests, take into account legal obstacles, or avoid undue hardship.
The regulations concerning suspension can be found in various codes of procedure, in particular the Code of Civil Procedure (ZPO), the Code of Criminal Procedure (StPO), the Fiscal Code (AO), the Administrative Enforcement Law, and the Social Code (SGB). The precise structure and requirements differ depending on the area of law.
Suspension of Enforcement in Civil Law
Legal Basis for Suspension of Civil Enforcement
Enforcement in civil procedure is primarily based on §§ 704 ff. ZPO. The suspension of compulsory enforcement may be ordered pursuant to §§ 769, 775, 776 ZPO.
Provisional Suspension under § 769 ZPO
The trial court may, upon application, suspend enforcement if the debtor makes it plausible that an appeal or other objection has been filed against the enforcement title whose prospects of success are still open. The suspension is generally granted with or without provision of security.
Suspension under § 775 ZPO
A suspension or revocation occurs if it subsequently appears that the prerequisites for enforcement have ceased to exist. Grounds may include, for example, satisfaction of the claim, revocation of the enforcement title, or an order for restitution.
Suspension under § 776 ZPO
Suspension of enforcement is also possible if other reasons outside the titling proceedings make enforcement inadmissible. These include, for example, substantive legal impediments.
Procedural Steps of Suspension
The decision to suspend is made by the competent enforcement court or the court of first instance (§ 764 ZPO). This may be ordered with or without provision of security. As a rule, an immediate complaint (§ 793 ZPO) is admissible against the decision.
Legal Consequences of Suspension
With suspension of enforcement, the proceeding is temporarily (in case of provisional suspension) or permanently halted. Enforcement measures already carried out may be revoked. Amounts collected unlawfully are to be reimbursed to the debtor.
Suspension of Enforcement in Criminal Law
Legal Basis in Criminal Enforcement Proceedings
In criminal enforcement law, the suspension of enforcement is mainly governed by the Code of Criminal Procedure (§§ 454b, 458 ff. StPO). It is applied in particular when reviewing new or mitigating circumstances.
Typical Grounds and Procedures
Suspension may be considered, among other instances:
- in cases of pardon, amnesty, or clemency,
- in clemency proceedings (§ 453 StPO),
- for suspension of enforcement on probation (§§ 56 ff. StGB),
- in cases of insolvency regarding fines (§ 459a StPO),
- upon the death of the convicted person (§ 454a StPO).
As a rule, the decision is made by the public prosecutor’s office as the enforcement authority, subject to judicial review if appropriate legal remedies are sought.
Suspension of Enforcement in Administrative Law
Suspension of Enforcement under Administrative Enforcement Acts
In administrative enforcement law, the respective administrative enforcement acts of the federal government and the federal states (VwVG, LVwVG) govern suspension options, such as in § 19 VwVG.
Typical grounds for suspension are:
- suspensive effect of an objection or an action for annulment,
- completion of the underlying administrative act,
- prohibition by the court in preliminary legal protection proceedings.
The decision is made in each case by the enforcement authority; usually, an objection or an application for judicial legal protection can be lodged against this administrative decision.
Suspension of Enforcement in Tax and Fiscal Law
Fiscal Code and Suspension Options
Die Fiscal Code (AO) regulates the suspension of enforcement in § 257 AO, if the tax claim is suspended or there are doubts about its legality. This is the case, for example, if an objection is filed together with an application for suspension of execution (§ 361 AO).
The tax authority will also suspend enforcement if the tax assessment is expected to be incorrect or considerations of equity apply (§ 258 AO).
Suspension of Enforcement under Social Law
Regulations in the SGB
Under social law – for example, in SGB X – enforcement measures may be suspended if legal remedies have been pursued, new facts give rise to significant doubts as to the legality of the administrative act, or suspension of enforcement is granted.
Legal Remedies and Legal Protection in the Case of Suspension of Enforcement
An appeal or lawsuit may generally be lodged against the decision to suspend or refuse suspension of enforcement. The respective procedural codes govern if and when an immediate complaint, an application for judicial legal protection, or a lawsuit is permissible.
Summary
Die Suspension of Enforcement is a central legal institution in all areas of state enforcement of claims. It serves to balance the interests of creditors and debtors, ensure the legality of enforcement measures, and prevent loss of rights or undue hardship. The substantive and procedural requirements differ between civil, criminal, administrative, tax, and social law, but are regularly based on the principle that no unlawful enforcement may take place. The decision on suspension is equipped with effective legal remedies to safeguard the interests of both the creditor and the debtor.
Frequently Asked Questions
Under what conditions can a suspension of enforcement be requested?
A suspension of enforcement can generally only be requested when legal grounds justify it. Common examples are the lodging of legal remedies such as objection, appeal, or complaint against the underlying title, interim legal protection (e.g., via a preliminary injunction), or the existence of payment extension agreements or deferral of payment. Undue hardship, such as existential threat to the debtor, can also lead to suspension. As a rule, an application must be made to the enforcement authority, the enforcement court, or in the case of compulsory enforcement to the bailiff. The specific requirements result from the relevant laws, such as §§ 153 AO, 775, 769 ZPO, or state law provisions. The application must usually state the facts and evidence precisely and make it plausible why continued enforcement would be unlawful or unreasonable.
Who is responsible for the decision to suspend enforcement?
Jurisdiction primarily depends on whether it is a judicial or administrative enforcement. For enforcement of a civil judgment, the enforcement court under §§ 764, 766, 769 ZPO is usually responsible. If public law claims—such as from tax or social benefit assessments—are being enforced, the relevant enforcement authority or the administration itself is responsible, cf. § 258 AO or the respective administrative enforcement acts (e.g., VwVG). In individual cases, higher administrative authorities as supervisory bodies may also have competence. In the case of pending objections or appeals, the originating court may also be authorized to order suspension.
What effect does suspension of enforcement have on the title itself?
The suspension of enforcement exclusively affects the compulsory enforcement as a sovereign act and does not affect the substantive legal force of the enforcement title. This means that the claim itself is not nullified nor is the title as such revoked. The suspension merely results in no further enforcement actions being carried out either temporarily or permanently. The claim itself continues to exist until it lapses through payment, revocation, or other final settlement of the title. If the grounds for suspension cease to exist or legal remedies are rejected, enforcement may be resumed.
Can the suspension of enforcement have retroactive effect?
As a rule, suspension of enforcement can only be ordered for the future, that is, for measures not yet carried out. Enforcement measures already executed (such as account or wage garnishments) remain unaffected by subsequent suspension. The reversal of enforcement actions already executed can generally only be achieved through separate applications, such as return of seized property or surrender of proceeds, if the underlying title proves to be void or defective. In some cases—such as where the original title is settled or successfully contested—a reversal by way of damages or the law of unjust enrichment is possible.
What legal remedies are available against the rejection of an application for suspension?
If an application for suspension of enforcement is rejected, different legal remedies are available to the applicant depending on the area of law and procedural status. In civil enforcement proceedings, an immediate appeal pursuant to § 793 ZPO is possible against adverse decisions of the enforcement court. In administrative or tax law, an objection, annulment action, or application for interim legal protection in accordance with §§ 80, 80a VwGO may be lodged with the administrative court. In urgent cases, temporary injunctions may also be requested to avert adverse effects resulting from continued enforcement.
Is a security required for the suspension of enforcement?
Whether and under which circumstances security must be provided depends on the individual case and the legal basis. In the case of suspension of compulsory enforcement where an appeal has been lodged but not yet decided, § 769 ZPO provides the option to order suspension only upon provision of security. A surety, bank guarantee, or deposit of an appropriate amount is usually sufficient. The purpose of the security is to protect the creditor in case the appeal proves unfounded and enforcement is resumed.
What are the consequences of an abusive or unjustified suspension of enforcement?
A suspension of enforcement obtained unjustifiably or abusively can have significant legal and financial consequences for the applicant. If it later emerges that the suspension was based on false information or inaccurate facts, the creditor may claim compensation for any resulting damages. In addition, procedural sanctions may be imposed, such as dismissal of the application as inadmissible, and in individual cases even criminal consequences, for example for attempted procedural fraud. Courts and authorities therefore examine the prerequisites for suspension very carefully.
