Definition and legal classification of the arrest order
Der Arrest Order is a judicial act of authority in German civil procedure law, which is issued as part of the so-called security proceedings pursuant to §§ 916 et seq. of the Code of Civil Procedure (ZPO). The purpose of an arrest order is the provisional securing of a claim through the prompt imposition of protective measures, particularly to prevent the risk that the subsequent enforcement of a judgment may be frustrated or significantly impeded.
Legal basis of the arrest order
The central statutory basis is the German Code of Civil Procedure (ZPO), specifically §§ 916 to 934 ZPO. In addition, supplementary regulations can be found in other sections such as the Code of Enforcement (ZPO §§ 928 et seq., 930 et seq.) and in the German Civil Code (BGB), insofar as substantive law issues are concerned.
Types of Arrest
Basically, two forms of arrest are distinguished:
- Preventive attachment (§ 916 ZPO): serves to secure monetary claims.
- Provisional seizure of property (§ 916 para. 2 ZPO): concerns security measures that are directed not at monetary claims but at other types of claims.
Requirements for the issuance of an arrest order
The issuance of an arrest order requires two central prerequisites:
Claim (attachment claim)
The applicant must substantiate the existence of a claim against the respondent. This is frequently a claim for payment of a sum of money or a future claim for damages.
Grounds for arrest
In addition to the claim, a ground for arrest must also be substantiated. This is the case if there is reason to fear that enforcement of the claim would be thwarted or significantly impeded without the ordered security measures (§ 917 para. 2, § 918 ZPO). Typical grounds for arrest include the danger of asset transfers by the respondent or imminent insolvency.
Substantiation (§ 294 ZPO)
The requirements do not need to be strictly proven; it suffices to demonstrate substantiation, for example by affidavit or other documents.
Procedure for issuing an arrest order
Filing the application
The attachment proceedings commence with an application addressed to the competent court, in which the applicant must set out and substantiate the above-named requirements.
Jurisdiction
Local and subject-matter jurisdiction generally lies with the court in whose district the assets to be secured are located (§ 943 ZPO).
Court decision
The arrest order may be issued, depending on the circumstances, without an oral hearing and, in urgent cases, even without prior hearing of the respondent by court order (§ 922 para. 1 ZPO). The court conducts a summary examination and it is issued—as opposed to a judgment—as an enforceable order.
Security deposit
The court may require the applicant to provide security in order to exclude unjustified damages to the respondent (§ 921 ZPO).
Effect and enforcement of the arrest order
Legal effect
Upon service of the arrest order, the creditor can access the debtor’s assets specified in the order, e.g., by garnishing accounts or seizing movable property.
Enforcement (§ 929 ZPO)
The arrest order must be enforced, meaning the ordered protective measures must be implemented within one month of service. Otherwise, the arrest loses its security effect.
Duration and revocation
The arrest order remains effective until a different decision is made or the reason for security ceases. The respondent may apply for the lifting or modification of the arrest order for formal or substantive reasons, for example if the grounds for arrest no longer exist (§ 924 ZPO).
Legal remedies and legal protection
Objection and immediate appeal
The respondent has the right of objection to the arrest order under § 924 ZPO. In addition, an immediate appeal pursuant to § 567 et seq. ZPO is possible against the order.
Liability risks for the applicant
If the arrest subsequently proves to be unjustified, the applicant is liable for any resulting financial harm to the respondent (§ 945 ZPO). This liability risk serves as a corrective against abusive applications.
Relationship to other interim measures
The arrest order is part of the so-called “interim legal protection measures,” but differs from the concept of a preliminary injunction (§§ 935 et seq. ZPO), which aims to secure claims other than monetary claims or to regulate a specific state of affairs. The arrest order primarily serves to secure monetary claims.
Arrest order in an international context
An arrest order may also be relevant in international legal transactions, for example for enforcing foreign judgments or cross-border matters. Recognition and enforcement in such cases are governed by European regulations or bilateral treaties.
Summary
The arrest order is an effective instrument for the provisional securing of claims under German civil law. It provides the creditor with effective legal protection by safeguarding subsequent enforcement, while at the same time, through strict requirements and liability provisions, adequately protecting the debtor.
Further keywords: Security measure, Code of Civil Procedure, legal protection proceedings, garnishment, interim legal protection, enforcement title, asset attachment.
Frequently asked questions
How is an arrest order applied for and who is responsible for it?
An arrest order is regularly applied for in legal contexts in civil proceedings, for example to secure monetary claims (preventive attachment) or to secure a claim for the surrender of specific items (attachment to a specific item). The competent authority is the court in whose district the object of attachment is located or the court that has jurisdiction over the main matter, pursuant to §§ 916 et seq. of the Code of Civil Procedure (ZPO). The application for issuing an arrest order may generally be filed in writing or recorded at the court office. It must specify precisely the ground for arrest, the claim to be secured, as well as provide a detailed account and substantiation of the circumstances that should convince the court of the necessity of the arrest. The decision is usually made without an oral hearing in summary proceedings, whereby the court in particular examines whether a claim to and a ground for arrest (e.g. risk of frustration or hindrance of enforcement) have been sufficiently substantiated.
What requirements must be met for the issuance of an arrest order?
According to §§ 917, 918 ZPO, two main requirements must be cumulatively met for the issuance of an arrest order: Firstly, an attachment claim, i.e., an existing, enforceable claim of the creditor against the debtor, which is usually aimed at payment or surrender. Secondly, a ground for arrest is necessary, i.e., the objective risk that, without the arrest order, later enforcement of the claim could be thwarted or significantly impeded. The applicant does not need to fully prove these requirements, but only substantiate them, which can be accomplished by submitting documents or affidavits. The court conducts a particularly strict examination, as an arrest order constitutes a significant intervention.
What legal remedies can be taken against an arrest order?
The arrest order is a judicial act of authority issued by way of interim measure. The affected party, in particular, has the remedy of immediate appeal pursuant to § 793 or § 924 ZPO if it is an arrest order issued by court order. In addition, retrospective review in an oral hearing is possible in the arrest proceedings, as the debtor must generally be granted the right to be heard (§ 922 para. 2 ZPO). The court then decides again on the arrest order. Revocation or modification of the arrest order is also possible if the grounds cease to exist or circumstances change.
What is the difference between an arrest order and a preliminary injunction?
Although both instruments serve provisional legal protection, they differ in their purpose and areas of application: The arrest order is primarily aimed at securing monetary claims or specific items and prevents the frustration or hindrance of future enforcement. A preliminary injunction, by contrast, serves to secure claims requiring specific acts, toleration, or omission—e.g., in competition or personality rights protection. Whereas the arrest typically aims to secure enforcement against the assets, the injunction seeks to regulate a disputed legal relationship in the short term.
What effects does the arrest order have on the debtor and third parties?
The arrest order restricts the debtor’s right of disposal over the attached assets. Depending on how it is structured, the arrest can be secured under civil law (e.g., by garnishment of movable property or accounts) or by registration in the land register (for real estate). Third parties, such as banks or custodians, are required to comply with the measure during enforcement of the arrest order, otherwise they risk corresponding liability consequences. However, the arrest order itself does not yet grant a final right of access to the assets; this only occurs once a corresponding enforcement title has been obtained. By its nature, the measure is purely protective and not condemnatory.
How is an arrest order enforced?
After issuance, the arrest order must be enforced within a period specified by the court (often one month from pronouncement or service), otherwise it loses its effectiveness (§ 929 para. 2 ZPO). Enforcement means that the object of attachment is actually secured, for example by seizure of movable property through a bailiff or by garnishing the debtor’s bank accounts. The actual security measure thus only takes place upon enforcement, which must proceed formally and within the prescribed time limit. If the creditor fails to enforce, the arrest order becomes void and can no longer have legal effect.
Can the applicant become liable for damages as a result of the arrest order?
The applicant may become liable to the respondent for damages if the arrest order subsequently proves to be unjustified from the outset. Under § 945 ZPO, the applicant is then liable for all damages suffered by the respondent as a result of enforcement of the arrest. To minimize the risk to the respondent, the court often requires a security deposit pursuant to § 921 ZPO to compensate for any possible damages. If the arrest order was applied for abusively or negligently, this liability can have far-reaching financial consequences for the applicant.
