Write-off of court costs
The write-off of court costs is a term from cost law and refers to the permanent or temporary suspension of the enforcement of court cost claims by judicial authorities. It is an important instrument for making court cost settlement more flexible and is subject to strict legal requirements. The following article examines the legal basis, prerequisites, procedures, as well as the effects and limitations of the write-off of court costs under German law.
Legal basis
Court Costs Act (GKG)
The relevant provisions regarding the assessment and write-off of court costs are primarily found in the Court Costs Act (GKG). Supplementary provisions are contained in the Schedule of Costs (KV) to the GKG, in the Costs Regulation (KostO), as well as in country-specific administrative regulations. The legal basis for write-off derives in particular from § 59 GKG in conjunction with budgetary regulations and administrative directives of the state judicial administrations.
Budgetary regulations
The write-off of claims by public authorities, which also includes court costs, is governed by budgetary law in the respective State Budget Codes (e.g., § 59 of the Federal Budget Code). Accordingly, a claim may be written off if it becomes apparent that collection will not succeed or further pursuit is not expedient for other reasons, and this does not affect applicable law.
Definition and distinction
Definition
The write-off of court costs refers to the formal decision by the judicial administration not to continue enforcing court cost claims, without extinguishing the debtor’s payment obligation. The claim therefore remains in existence, but is no longer actively pursued.
Distinction from remission and deferral
The write-off must be distinguished from the remission and deferral of court costs:
- Remission: Here, the cost debt is completely extinguished (see § 59 para. 2 GKG and relevant remission provisions).
- Deferral: The due date of the costs is postponed, but the claim remains valid and collectible.
- Write-off: The claim remains in force, compulsory enforcement is suspended, but may be resumed if the debtor’s financial circumstances improve.
Requirements for write-off
Unreasonableness or futility of collection
Typical reasons for the write-off of court costs include:
- Futility of further enforcement, for example, due to lack of attachable assets
- Permanent inability to pay on the part of the debtor, evidenced by affidavits, unsuccessful enforcement attempts, insolvency proceedings with no prospect of payment
- Minor amount of the claim, where the costs of collection would be clearly disproportionate to the outcome
- Special hardship cases, e.g., death of the debtor with no estate, unknown whereabouts of the debtor despite intensive investigations
Form and procedure
The write-off is generally carried out upon written application or ex officio by the competent cost unit or judicial treasury. A comprehensive case-by-case examination and documentation of the reasons is required. The decision to write off is an internal administrative measure and is not issued as an administrative act with external effect.
Procedure for write-off
Decision-making authority
The authority to decide on the write-off lies with the state judicial administrations, usually represented by the respective court or treasury administrations. In certain cases, consent from the superior treasury management or budgetary authority may be required, especially for substantial amounts.
Documentation and legal consequences
The write-off must be recorded in the file and noted in the debt register. The claim remains legally in existence, but collection measures are refrained from for the time being. In the event of a subsequent improvement in the debtor’s financial circumstances, collection may be resumed (revival of collection).
Legal consequences and effects
Continuation of the claim
The court cost claim is not remitted by the write-off, but merely temporarily set dormant internally. It is not extinguished and can be asserted again as long as it is not time-barred.
Limitation period
The limitation period for court costs is governed by the general provisions of civil law (§ 197 BGB – 30 years for enforceable claims). The write-off neither interrupts nor suspends the limitation period, so the period continues to run from the original starting point. After the expiration of the limitation period, the claim can no longer be asserted.
Information to the debtor
Generally, the debtor is not formally informed of the write-off, as it is an internal measure. However, the administration may provide information about it upon request.
Limitations and special features
No right of appeal
As the write-off is an internal administrative measure without external effect, the debtor has no legal remedies. There is generally no entitlement to the write-off of a cost debt.
Resumption of collection
Should the debtor’s financial situation improve, the claim can be revived and collected. Another write-off is possible in the event of renewed futility.
Special cases
In certain situations, such as deficits resulting from judicial errors or in proceedings involving legal aid, special regulations apply to write-off and its budgetary treatment.
Practical relevance
The write-off of court costs is of particular importance in the case of uncollectible claims, as it serves the economic management of public funds. It enables judicial authorities to manage the effort involved in collecting cost claims in terms of expediency and cost-effectiveness, without relinquishing legal claims.
Summary
The write-off of court costs is an internal administrative procedure provided for by cost law, allowing judicial authorities to temporarily or permanently refrain from collecting court cost claims for reasons of expediency and economy. It must be strictly distinguished from remission and deferral, does not extinguish the debt, and, in the event of subsequently improved solvency of the debtor, allows for the resumption of cost collection. The legal requirements are found in various laws, ordinances, and budgetary regulations and ensure consistent and transparent administrative practice.
Frequently Asked Questions
Who can apply for the write-off of court costs?
An application for the write-off of court costs can generally be made by the cost debtor, i.e., the person who, under the underlying judgment, order, or cost assessment order, is obliged to pay the court costs. This often pertains to parties in court proceedings who are unable to pay despite the costs falling due. In some cases, the application may also be submitted by legal representatives, guardians, or insolvency administrators on behalf of the debtor, provided they are properly authorized. Occasionally, public officials or other affected third parties may also submit such an application based on special statutory provisions.
What requirements must be met for the write-off of court costs?
Certain legal and factual prerequisites must be met for the write-off of court costs. The central requirement is the impossibility or significant unlikelihood of further collection, which is assumed, for example, in cases of insolvency or the cost debtor’s lack of assets. Insolvency must generally be proven, e.g., by an affidavit, proof of ongoing social benefits, progress reports from an insolvency administrator, or other suitable evidence of financial capability. Moreover, there must be no obvious abuse of rights or dishonest conduct on the part of the debtor. The decision to write off always lies at the discretion of the competent enforcement authority, which must take all circumstances of the individual case into account.
What are the consequences of the write-off of court costs for the cost debtor?
The write-off of court costs means that judicial authorities temporarily or permanently refrain from forcible collection of outstanding court costs. For the cost debtor, this results in no further enforcement measures (such as account attachment or distraint) being taken for the relevant fees and expenses. Nevertheless, the public law cost order generally remains in effect; the claim may – unless otherwise notified – be revived if the debtor’s financial circumstances improve. The mere write-off does not constitute final discharge of the cost claim. In practice, this means that an entry in the debtor register is usually not made.
Is the write-off of court costs different from a remission or a deferral?
Yes, the write-off of court costs is legally clearly distinguishable from remission or deferral. For a write-off, the authority merely refrains from forcibly collecting the claim, but the cost debtor remains legally obliged to pay if his financial situation improves. In contrast, remission leads to the claim being completely and finally extinguished, so that subsequent collection is generally excluded. A deferral, on the other hand, means that the due date of the claim is postponed, with notifications about the deferral and new deadlines usually given. For this reason, write-off is primarily to be understood as a provisional measure that keeps open the possibility of collection in the future.
Who decides on the write-off of court costs and what legal bases apply?
The responsibility for deciding on the write-off of court costs lies with the judicial or enforcement authority tasked with collection; usually, this is the court treasury or specialized cost officials of the relevant state’s judicial administration. The legal bases are provided by various laws and administrative regulations, particularly § 59 Federal Budget Code (BHO) and supplementary administrative directives of the states. There are also special statutory provisions, e.g., in the Court Costs Act (GKG) or the Judicial Administration Costs Act (JVKostG). The decision is made at due discretion, taking into account legal requirements and the individual circumstances; there is generally no entitlement to a write-off.
How does the procedure for writing off court costs work?
The procedure usually begins with an informal written application from the cost debtor or their representative to the competent court treasury, outlining the individual financial circumstances. Suitable evidence, such as certificates of ongoing social benefits, income and asset declarations, as well as evidence of ongoing garnishments, should be attached to the application. The authority reviews the requirements based on the case file and may request additional documents or statements. After completing its review, the applicant will be notified in writing of the decision regarding (provisional or final) write-off. If the application is rejected, a review under administrative law may be possible; normally, no express judicial remedy is provided, but a request for review may be submitted to the superior authority.
