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- The third-party action protects the rights of third parties under German enforcement law.
- Regulation in Section 771 of the Code of Civil Procedure(ZPO) enables intervention against unauthorized enforcement.
- Prerequisites: ongoing enforcement, plaintiff is not a party, asserted right prevents sale.
- Important procedure for clarifying ownership and security interests.
- Action for third-party proceedings has no suspensive effect; application for temporary suspension possible.
- Differentiation from other legal remedies such as action to defend against enforcement and enforcement reminder.
- Current developments concern new rights and international aspects of enforcement.
Definition and legal basis:
The third-party action, also known as an intervention action, is a legal remedy under German enforcement law. It is regulated in Section 771 of the German Code of Civil Procedure (ZPO) and enables a third party who is not a party to the enforcement proceedings to defend themselves against the compulsory enforcement of an object to which they assert a right that prevents the sale.
The third-party action serves to protect the rights of third parties that could be impaired by enforcement. It is an important instrument for safeguarding the principle of the rule of law and the protection of property in enforcement proceedings.
Requirements and scope of application:
The following requirements must be met in order to file a third-party action:
1. ongoing or imminent enforcement against a specific object
2. The plaintiff is not a party to the enforcement proceedings
3. The plaintiff asserts a right to the object that prevents its sale
4. The asserted right would make enforcement inadmissible
Typical applications of the third-party action are:
– Ownership of the pledged item by the third party
– expectant rights (e.g. from a reservation of title)
– Liens or usufructuary rights of the third party
– Trust relationships in which the trustee is formally the owner
Procedure and legal consequences:
The procedure for third-party proceedings is as follows:
1. filing the action with the competent court (usually the enforcement court)
2. service of the action on the creditor and the debtor
3. Conduct of the action in accordance with the general rules of civil procedure
4. Judgment on the inadmissibility of compulsory enforcement of the object in dispute
If the third-party action is successful, enforcement against the object in question is declared inadmissible. This leads to the revocation of enforcement measures that have already taken place and prevents further enforcement actions with regard to this object.
It is important to note that the third-party action has no suspensive effect. However, the third party can file an application for temporary suspension of enforcement in accordance with Section 769 ZPO in order to obtain interim legal protection.
Delimitation and relationship to other legal remedies:
The third-party action must be distinguished from other legal remedies in enforcement law:
1. action to defend against enforcement (Section 767 ZPO): This is directed against the claim itself and can only be brought by the debtor.
2. enforcement reminder (Section 766 ZPO): This concerns the manner of enforcement, not material rights to the pledged property.
3. action for preferential satisfaction (Section 805 ZPO): This relates to liens and preferential rights that do not prevent a sale, but only claim preferential satisfaction from the proceeds.
Choosing the right legal remedy is crucial to the success of the action against enforcement.
Practical significance and challenges:
The third-party action is of considerable importance in practice, particularly in the following situations:
1. complex ownership structures: In the case of opaque ownership and property relationships, a lawsuit can help to clarify the situation.
2. security interests: In cases of transfer by way of security or retention of title, legal action is often the means of choice for the guarantor.
3. family law constellations: In the case of spouses or civil partners, the allocation of assets can often only be clarified by means of a third-party action.
Challenges in practice arise in particular from
– The plaintiff’s burden of proof for his right preventing the sale
– The often difficult demarcation to other legal remedies
– The need to act quickly to prevent irreversible enforcement measures
Current developments and case law:
The case law on third-party proceedings is constantly evolving, particularly with regard to:
1. the recognition of new forms of rights preventing alienation
2. The treatment of fiduciary relationships and beneficial ownership
3. The impact of digitization on ownership and tenure (e.g. digital assets)
International aspects are also becoming increasingly important, for example in the enforcement of foreign titles or cross-border security interests.
In summary, the third-party action is an indispensable instrument for protecting the rights of third parties in enforcement proceedings. It requires lawyers and judges to have a deep understanding of both enforcement law and substantive civil law. In an increasingly complex economic world with diverse forms of ownership and security interests, the third-party action remains an important means of ensuring fair and constitutional enforcement proceedings.
