Bailiffs in Germany

Bailiffs in Germany

Professional Activities and Legal Framework

The basic functions of Gerichtsvollzieher

Gerichtsvollzieher are civil servants working as servers and enforcers. In the area of execution (Zwangsvollstreckung) they are responsible for the seizure of property as well as the seizure of ships registered in the register of shipping, for the provisional seizure of claims, for the taking away of objects, the clearing[1] of estates, dwellings and other premises, for the administering of the affirmation in lieu of an oath of disclosure[2] including the relevant procedure and, if needs be the arrest of the debtor on the basis of a warrant issued by a judge, the arrest and production of witnesses as well as other arrests in civil proceedings.

Fields of professional activity

They are:

  • The Gerichtsvollzieher is as a civil servant limited to the tasks assigned to him by the Act on the constitution of the courts (Gerichtsverfassungsgesetz) and by other laws, however, this keeps them fully occupied too.
  • The Gerichtsvollzieher has to perform his office in a neutral way, has to observe not only the interests of the creditor but those of the debtor as well and has to proceed strictly according to the legal provisions (in particular those of the code of civil procedure [Zivilprozeßordnung], 8th book) which regulates the tasks named under 1 c. He is subject to the duty of professional confidentiality, has to keep received money with care and to pass it on, he has to provide for regular book-keeping and has to inform himself constantly about the developent of relevant precedents[3]. In view of the possibility of cases of liability caused by his own fault he has to take out liability insurance. As a rule, the State accepts liability for occurring damage, but in cases of intent or gross negligence, the State can have recourse against the Gerichtsvollzieher.

The Gerichtsvollzieher receives a salary according to the Salary Act (Besoldungsgesetz) in its current version and he also receives a part of the fees which he collects according to legal provisions as an additional part of his salary. Beyond that he receives a further part of his salary as compensation to make up for his office expenses (room, equipment and typist).

Service and office relations of the Gerichtsvollzieher are regulated in the code of Gerichtsvollzieher (Gerichtsvollzieherordnung) and in the internal instructions for Gerichtsvollzieher (Geschäftsanweisung fßr Gerichtsvollzieher) which can be obtained through booksellers.

Interdisciplinary and multidisciplinary activities

German Gerichtsvollzieher cannot maintain a joint practice with other professions or foreign lawyers, but they can form an office partnership together with other Gerichtsvollzieher in the same county court district.

Mobility

Bailliffs are covered by the general Directives on mutual recognition of diplomas, unless they can show that their activities are exempt under the Treaty exceptions to free movement to be found in Articles 39 (4) or 45 EC. This is unlikely as the European Commission reportedly (Law Society Gazette) has recently decided (November 2000) that notaries are not to be considered as immune from the effects of the free movement articles of the Treaty.

International professional practice

While Gerichtsvollzieher in Germany also enforce judgments issued abroad according to the relevant provisions, they do not yet exercise an activity beyond the boundaries of the State. While ‘State’ is the term both for each of the 16 German States as well as Germany as a whole, I assume that under the header of ‘International professional practice’ the latter is meant.

Legal Education

Persons wishing to apply for the office of Gerichtsvollzieher have to complete secondary modern school (Realschule[4]) or must have a comparable level of education. They then have to go through training of two years of the intermediate judicial service[5] and to successfully complete this with a career examination. Then they have to have served satisfactorily for two years in the intermediate judicial service (predominantly management of the administrative office of courts of law). From this circle of persons those applicants can be admitted to the career of Gerichtsvollzieher who are at least 23 years of age and no older than 40 years. The selection is done by the president of the higher regional court (Oberlandesgericht). Training lasts for 18 months, of these 6 months of theoretical tuition in a school under the management of the judicial service and 12 months of practical training at courts and with Gerichtsvollziehern. Following this, another professional exam. After two years of successful service in the Gerichtsvollzieher service (Gerichtsvollzieherdienst) they will be appointed Gerichtsvollzieher.

Duration:

  • Training in total: 5 ½ years
  • Until appointment on schedule: 7 ½ years

See information on Continuing Professional Development (in legal training) below.

Legal Training and Continuing Professional Development

Gerichtsvollzieher regularly attend courses of post-basic training which are being organized by the administration of the judicial service and which for the most part take place in those schools in which theoretical training also takes place.

Governing Bodies

Supervision of activities

Professionally, the activity of Gerichtsvollzieher is being supervised by the courts of enforcement (Vollstreckungsgerichte). The term ‘Court of enforcement’ does not signify an individual genre of courts of law, but refers to the specific activity; it could therefore be a county court acting as a court of enforcement, a regional court acting in that capacity etc. Against the mode of enforcement, creditors, debtors and third parties can register a protest (Erinnerung). Thereupon the responsible judge of the county court checks the legality of the procedure. A civil servant of the responsible county court checks regularly if the other business (keeping of files, accounting, money transactions, pp.) is being conducted in an orderly manner, an inspection in this field takes place annually without prior announcement.

Disciplinary proceedings

Training and post basic training of Gerichtsvollzieher are being regulated by the administration of the judicial service of the states and the higher regional courts (Oberlandesgerichte). Since Gerichtsvollzieher are civil servants, they are subject to the disciplinary law of the States (Laender) of the Federation. Disciplinary powers are being exercised by the directors or presidents of the county courts or the higher regional courts, depending on the [nature of the] offence.

Relevant Legislation

Author: J Lonbay (A), 2008

Other Legal Professionals

Lawyers

There is an entry about lawyers in Germany in this European legal encyclopedia. Information about lawyers in Europe countries is provided here.

Notaries

There is an entry about notaries in Germany in this European legal encyclopedia. Information about notaries in Europe is provided here.

Bailiffs in some other European Countries

Resources

Notes

  1. in the meaning of ‘eviction of people from the premises’.
  2. The oath of disclosure or affirmation in lieu of an oath of disclosure is given by debtors who wish to affirm that they possess nothing that can be taken away – an insolvent debtors oath.
  3. The German word is ‘Rechtsprechung’ (lit. jurisdiction); while a law of precedent in the Anglo-Saxon meaning does not exist in Germany, the Gerichtsvollzieher would have the duty to follow the judgments etc of the courts.
  4. Realschule is a type of German school which leads to a degree comparable to the GCSE, not immediately to the Abitur (A level).
  5. “intermediate service” is a literal translation of “mittlerer Dienst”. The mittlere Dienst in Germany describes a level of civil service roughly comparable to the ancillary clerical service.

See Also

Further Reading

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