Concept and Legal Classification of the Arrest Warrant for Enforcement
Der Arrest Warrant for Enforcement is a legal term from German enforcement law and refers to a judicial coercive measure to enforce certain actions or to compel a statement of assets. Its primary purpose is to induce debtors to cooperate in enforcement proceedings, especially when other coercive measures fail or are not applicable. The legal basis for the arrest warrant for enforcement is found in the Code of Civil Procedure (ZPO).
Scope of Application and Legal Foundations
Statutory Provisions
The arrest warrant for enforcement is primarily regulated in §§ 802g and 802j ZPO. In addition, there are similar instruments in criminal law, but they serve different purposes and have different legal bases; in civil law, the focus is on compelling the statement of assets.
Civil Arrest Warrant for Enforcement under § 802g ZPO
The central provision for the civil arrest warrant for enforcement is § 802g ZPO; it stipulates that the enforcement court, upon application by the creditor, can issue an arrest warrant against a debtor if the debtor fails to fulfill the obligation to provide the statement of assets.
Further Legal Bases
In the area of enforcement by bailiffs, the following sections are relevant:
- § 802f ZPO – Coercive Measures for Enforcing the Statement of Assets
- § 802h ZPO – Determination of Whereabouts
- § 895 ZPO – Application of Provisions in Real Property Enforcement Law
Distinction from Other Arrest Warrants
The arrest warrant for enforcement must be distinguished from:
- vom Criminal Arrest Warrant (according to the Code of Criminal Procedure, e.g. to secure a criminal proceeding)
- vom Pre-trial Detention Warrant (to secure ongoing criminal proceedings)
The arrest warrant for enforcement serves exclusively to secure and enforce civil claims in the context of compulsory enforcement.
Requirements for Issuing an Arrest Warrant for Enforcement
Material Requirements
The following requirements must be met for the issuance of a civil arrest warrant for enforcement:
- Enforceable Title: An enforceable judgment, order, or enforcement notice must exist.
- Failure to Provide the Statement of Assets: The debtor must have failed to appear to provide the statement of assets despite being summoned, or must have refused to provide it.
- Creditor’s Application: The creditor must submit an application to the enforcement court or the competent bailiff.
- Hearing of the Debtor: The debtor must be given the opportunity to comment.
Procedure and Jurisdiction
The application for the issuance of an arrest warrant for enforcement must generally be filed with the competent enforcement court. In practice, the bailiff is responsible for the procedure.
Course of the Procedure
- Application Submission by the creditor to the bailiff.
- Examination of Requirements by the bailiff.
- Summons of the Debtor to provide the statement of assets, with reference to the possibility of an arrest warrant.
- Issuance of the Arrest Warrant for Enforcement in the event of non-appearance or refusal.
- Enforcement of the Arrest Warrant by enforcement agencies (police, bailiff).
Measures and Legal Consequences
If the arrest warrant for enforcement is executed, the debtor is brought in by force or detained to provide the statement of assets. The detention serves neither as punishment nor as debt repayment but solely to compel cooperation.
Duration of Detention
Detention on the basis of an arrest warrant for enforcement is limited in § 802j (1) ZPO. The duration may not exceed six months and generally ends as soon as the debtor subsequently performs the required act of cooperation.
Cost Consequences
The costs arising from the issuance and enforcement of the arrest warrant are generally borne by the debtor and are added to the enforceable amount.
Legal Remedies for Debtors
Legal Remedies against the Arrest Warrant for Enforcement
Debtors have various options to defend themselves against the arrest warrant for enforcement:
- Enforcement Objection under § 766 ZPO: In case of procedural formal errors.
- Complaint under § 793 ZPO: Against the order of detention.
- Objection to Admissibility of enforcement if the requirements were not fulfilled or have changed in the meantime.
Immediate Lifting of the Arrest Warrant
The arrest warrant is lifted as soon as the debtor has properly provided the statement of assets. The purpose of detention is thus achieved.
Special Protection Mechanisms
It is legally provided that certain groups of persons (for example, persons with health restrictions) are specifically protected, especially when unfitness for detention is present.
Practical Effects and Importance of the Measure
Significance for Creditors
The arrest warrant for enforcement represents an important means of exerting pressure to enforce information and cooperation obligations in connection with compulsory enforcement. It ensures that creditors can at least gain knowledge about the debtor’s assets in order to enforce proceedings in a targeted manner.
Significance for Debtors
For the debtor, the arrest warrant for enforcement involves significant consequences. It not only leads to financial burdens due to additional costs but also to a substantial restriction on personal rights through detention.
Entry in the Debtor Register
The issuance and execution of an arrest warrant for enforcement regularly lead to the entry of the debtor in the central debtor register (§ 882c ZPO), which can have significant effects on creditworthiness and credit rating.
Distinction from Similar Legal Instruments
Coercive Detention
Die Coercive Detention (for example, for failure to comply with an injunction) differs from the arrest warrant for enforcement in that it is generally a sanction for contempt of court orders, whereas the arrest warrant for enforcement serves exclusively to compel a specific action.
Detention to Enforce Obligations in Criminal Law
In criminal law, there is the so-called detention to enforce obligations under § 96 OWiG, which may be applied for non-compliance with payment orders; however, it is to be distinguished from civil arrest for enforcement.
Summary
Der Arrest Warrant for Enforcement is a central and sharp coercive instrument within German compulsory enforcement. Its application is subject to strict statutory requirements and serves to enforce the cooperation obligations of the debtor, especially regarding the provision of the statement of assets. Despite its intensity of intervention, it is an important element of the legal system to ensure creditor protection and the smooth execution of enforcement proceedings. Debtors are protected by various legal remedies and may have the arrest warrant lifted at any time by subsequent cooperation. The arrest warrant for enforcement is thus a complex instrument with significant consequences for both creditors and debtors in enforcement proceedings.
Frequently Asked Questions
How does the procedure for enforcing an arrest warrant work?
The procedure for enforcement of an arrest warrant due to debts usually begins with the creditor, after unsuccessful dunning and enforcement attempts, filing an application for a statement of assets with the competent local court. If the debtor does not comply with the bailiff’s request to provide the statement of assets (§ 802c ZPO)—either by failing to appear at the appointment or by refusing to provide the information—the bailiff applies for issuance of an arrest warrant in accordance with § 802g ZPO. The court formally examines the application and issues the arrest warrant without an oral hearing. The bailiff is then authorized to arrest the debtor and transfer them to the nearest correctional facility. The detention serves solely to compel the statement of assets, not as punishment. If the statement of assets is subsequently provided, the detention ends immediately. Otherwise, detention may last up to six months.
What role does the bailiff play in an arrest warrant for enforcement?
The bailiff plays a central role in the context of the arrest warrant for enforcement. The bailiff initiates the process by first summoning the debtor to provide the statement of assets and explaining the legal consequences of non-compliance. If the debtor does not comply, the bailiff submits the application for the issuance of the arrest warrant to the court. After the arrest warrant is issued, the bailiff is responsible both for the actual enforcement—i.e., the arrest of the debtor—and for the transfer to the correctional facility. Furthermore, the bailiff is authorized, upon successful enforcement action, to carry out searches in the debtor’s residence to determine their whereabouts, provided a judicial search warrant is available.
What rights does the debtor have regarding an arrest warrant for enforcement?
The debtor has extensive rights even if an arrest warrant for enforcement has been issued against them. In particular, they must be informed in advance about the appointment for the statement of assets and about the legal consequences of failure to appear. If an arrest warrant for enforcement is executed, the debtor can end the detention at any time by subsequently providing the statement of assets. In addition, the debtor may appeal against the arrest warrant, for example, by filing an immediate complaint under § 793 ZPO, if there are procedural errors or if the conditions for the arrest warrant are not met. During detention, the debtor enjoys all rights in the correctional facility except those that may be restricted to enforce the statement of assets. There is also a general legal protection option, such as a temporary injunction at the regional court.
Are there deadlines that must be observed for the arrest warrant for enforcement?
Both creditors and debtors must observe certain deadlines. After service of the request to provide the statement of assets, the debtor must be given a reasonable period in accordance with § 802f ZPO, generally at least two weeks, to prepare for or reschedule the appointment. The bailiff’s request for an arrest warrant must be filed within two years of the initial summons to provide the statement of assets. The arrest warrant for enforcement becomes invalid after six months (§ 802j ZPO) if it is not enforced. During detention, the statement of assets can be provided daily, so release from detention is possible at any time.
What costs arise from an arrest warrant for enforcement?
Issuing and enforcing an arrest warrant is regularly associated with additional costs, which the debtor must bear. This includes fees for the bailiff’s activities according to the Bailiff Costs Act (GvKostG), costs for applying for and serving the arrest warrant, and if applicable, for police measures and accommodation costs in the correctional facility. Depending on the extent and effort of the enforcement procedure, costs can increase significantly. Ultimately, all costs of enforcing the arrest warrant are imposed on the debtor as part of the enforcement debt and can also be forcibly collected from them.
What are the consequences of an arrest warrant for enforcement for the Schufa and other credit agencies?
The issuance of an arrest warrant for enforcement has significant effects on entries held by credit reporting agencies such as Schufa Holding AG. Already the application for the statement of assets—and even more so the issued arrest warrant for enforcement—is recorded as a negative factor, significantly impairing the debtor’s creditworthiness. After completion, the entry remains stored for three years and makes it harder to enter into contracts, obtain loans, or rent property during this time. Early deletion is only possible under strict requirements, for example, if obvious inaccuracy can be proven.
What happens if the debtor cannot be found?
If the debtor cannot be found despite investigations by the bailiff, proceedings regarding the statement of assets can be temporarily suspended. The arrest warrant for enforcement, however, remains in effect and is issued for a search. If the debtor’s whereabouts become known or if the debtor is found during a police check, the warrant can be executed immediately. In such cases, location determination may be done via inquiries to registration offices, information requests to authorities, or gathering of information from the debtor’s personal environment, all within the bounds of the law.
What are the differences between the arrest warrant for enforcement and a criminal arrest warrant?
The arrest warrant for enforcement in compulsory enforcement proceedings must be strictly distinguished from a criminal arrest warrant. While a criminal arrest warrant is issued due to urgent suspicion and the presence of risk of flight or obstruction of justice for the purpose of prosecution, the arrest warrant for enforcement serves only the purpose of compelling the provision of the statement of assets (§ 802g ZPO). It is expressly not a criminal measure or punishment, but a civil enforcement tool. Detention ends immediately as soon as the debtor fulfills their cooperation obligations, regardless of how long it was originally ordered for.
