The Federal Court of Justice (BGH) has ruled in the
November last year decided
(Az. IX ZB 89/05) that private pensions from
an accident or
Occupational disability insurance from
freelancers or self-employed persons no
Enjoy garnishment protection. similar lies the
The case of occupational pensions
(bAV). The BGH allows the
Insolvency administrator this even despite
effective pledge and vesting
(file no. IX ZR 138/04). Early provision for the
Assets are therefore necessary for all concerned.
In principle, therefore, only pensions and retirement pensions are deductible from the
garnishment protection, which the employer (civil servant) or a
Employer owes. Then the seizure allowance applies to single persons…
of around 900 euros and for married couples of just under 1,400 euros. At the
However, in the opinion of the Federal Government, there is no need for a
the Karlsruhe judges “for attachment protection of pensions of
no room in the first place”.
The dilemma for the self-employed
In doing so, the BGH clarified that only employees and civil servants who work for
themselves or their dependants an old-age provision under insurance law
benefit from the protection against execution. Thereby are
refers exclusively to those private pensions which are ‘paid on the occasion of the
termination of a contract of service or employment is justified
become.” Continuing pensions of freelancers and self-employed persons
are therefore not protected.
Professionally self-employed people are only allowed to work within the narrow framework of the
Code of Civil Procedure free to keep a small garnishment-free estate out of
of an insurance company. However, since this pension is usually
will be relatively small, these persons will later have to
sometimes rely on supplementary social assistance.
BGH: unequal treatment constitutional
For the BGH this unequal treatment is constitutional (Az: IXa
ZB 271/03): Thus self-employed persons appeared also today still in
need protection to a lesser extent, because the people involved in the exercise of their
activity is regularly linked to higher employment opportunities also a
suggest further recourse to the law of enforcement.
In addition, the BGH also refers to a “higher responsibility and
Mündigkeit” of the self-employed and freelancers.
Asset protection through different “asset spheres
Therefore, those affected should be well informed and advised in order to
not to get caught “cold” later. One possibility is the so
asset protection. This includes
the separation and formation of different spheres of assets.
Professionally, these individuals should have a professional risk management
operate If possible, combined with its own liability,
which is separate from private assets.
However, private assets can also be protected in part from the
Protect creditor access. There are quite complicated approaches to this,
which also include solutions abroad or foundations, trusts and own
Include funds. For this reason, the persons concerned should
and design the supply in time. Last minute at
assets into a safe haven in the event of imminent insolvency.
usually remains successful.
Author(s): Attorney-at-law Dr. Johannes Fiala and Dipl.-Math. Peter A.
Schramm
(all4finance.com)
Courtesy ofwww.all4finance.de.
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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