Permits for guardianship of minors, care and administration of the estate
A legal guardian can be appointed for an adult: Legal guardianship leads to legal guardianship, § 1902. The guardianship court may appoint a voluntary guardian (lay guardian) or a professional guardian. The appointment of a suitable volunteer supervisor is a priority. The volunteer counsellor is usually a relative or acquaintance of the person concerned. Committed citizens can also take over voluntary support.
The lay caregiver is advised to seek advice free of charge in accordance with § 1837 and to document the results. The following positions are eligible for consultation:
– Local court – guardianship court,
– Local authority care agency,
– Caring clubs.
In the case of occupational guidance counsellors, a distinction must be made between association guidance counsellors and freelance guidance counsellors.
The club supervisor works for a care association and is usually a social pedagogue; in exceptional cases a lawyer. As freelance supervisors, lawyers and social education workers are in the majority. Other professions include educators, pedagogues and psychologists.
Career counsellors without a university degree are financially worse off, unless they participate in a post-qualification measure.
The curator of the estate, guardian and caretaker are regularly equally subject to supervision by the local court in their activities. In practice, there are always uncertainties as to whether a declaration by the trustee of the estate, guardian or advisor requires the involvement of the local court by way of a permit.
In the first part, the authorisations to be obtained by the supervisor within the
asset provision for non-negotiable, adult beneficiaries. Where reference is made to the guardian, what has been said usually also applies to the curator of the estate and the guardian, although the presentation of differences in the legal design of these different functions is omitted for reasons of space.
The focus of this presentation is on problematic licensing requirements of Sections 1810, 1812, 1821 and 1822 (with the exception of the provisions on the transfer and deposit of bearer documents) as well as their exceptions and exemptions, which, with the exception of Section 1907, also apply to the guardian and the curator of the estate. These have to take into account § 1822 no. 5, the presentation of which, with regard to the comments on § 1907 Subsection 5, is to be taken into account. 3 is waived. The different legal form in this respect does justice to the fact that the ward acquires legal capacity upon reaching the age of majority and therefore requires different protection than a guardian who is incapable of conducting business.
The large number of different opinions in case law and literature on guardianship, care and administration of the estate repeatedly lead to considerable difficulties in practice. In the following, the different views are to be presented and evaluated with the aim of counteracting unnecessary applications for permits in order to relieve the administration of justice and to show the safest way for the carer.
The starting point for the permits to be obtained by the individual supervisor not exempted under sections 1852 et seq. is section 1908i, which by way of individual referral requires the analogous application of
individual rules on parental custody and guardianship. The legislator considered a blanket referral to be inappropriate. Furthermore, it is assumed that no (volunteer) counterpart supervisor pursuant to § 1908i, Subsection 1, is required to monitor the supervisor. 1 in conjunction with § 1792 paragraph 2, § 1799 is ordered — you practically can’t find it.
The well-being of the person being cared for
It is not uncommon for the carer to be exposed to the situation that relatives are anxious to
to prevent legal transactions which the guardian deems necessary, either because they have been promised the object of the legal transaction as a legacy or because they wish to preserve the future inheritance undiminished.
Practical case with solution note
General information on the permits to be obtained by the supervisor
In principle, there is no legal power of representation without a scope of duties. Therefore, an explicit assignment of the scope of tasks is necessary. The power of representation of the supervisor is specifically limited by
– the judicially determined scope of duties,
– provisions excluding the legal power of representation,
– regulations restricting the legal power of representation, which make the guardian’s actions dependent on the external approval of the guardianship court.
The supervisor is the legal representative of the person being cared for within the scope of duties assigned to him/her, § 1902. He also represents him before courts and authorities. The extent and scope of the power of representation coincides with the scope of the supervisor’s duties. Within the power of representation limited by the scope of duties, the supervisor must observe the barriers inherent in the law governing supervision, in particular obtain the necessary permits.
(a) The internal approval
During the term of office of the legal representative, the internal permit concerns the relationship between him and the local court as the supervisory authority over his activities.
Interior permits can be applied for both before the legal transaction is carried out and afterwards. According to e.g. §§ 1810, 1823, the guardian should obtain the approval of the guardianship court, according to § 1811 another investment of money can be permitted; the regulations are therefore purely rules of order. If the required internal approval is not available because it has not been applied for or has been refused, its absence shall not affect the validity of the legal transaction. This includes in particular the approval for:
– the opening of accounts in the context of the investment of trust money;
– the ordering of securities;
– the purchase of investment units (bond or equity funds or shares, as well as the conclusion of a life insurance contract or loan agreement for investment purposes;
– the purchase of secured receivables;
– the conclusion of the articles of association for participation in corporations and
– the trust fund
– the approval of the commencement or dissolution of an acquisition transaction and the corresponding articles of association or the participation of the assisted person in the liquidation resolution of the partners as well as the termination of the articles of association by the assisted person and the sale of the share in the company
(b) The exempted guardian
However, if the parents appoint a guardian for their minor child, they may release him from certain restrictions of sections 1809, 1810, 1812, 1814, 1816 in such a way that he does not require the approval of the counter guardian or the guardianship court for legal transactions not subject to the restrictions, sections 1852 to 1855. In addition, the guardian can be exempted from the obligation to submit annual accounts in accordance with § 1840, § 1854. In this case, the guardian must submit a balance sheet every two years. The guardianship court may override this exemption if its observance would endanger the interests of the ward, section 1857. This is the case if the guardian does not have the necessary expertise to manage substantial assets or if he is reluctant to take advice. These exemptions are entitled to the youth welfare office and an association as guardian by law, § 1857a.
(c) The external authorisation
The external permit concerns the relationship between the person being cared for and the contractual partner.
According to e.g. §§ 1812, 1821, 1822, 1907, the legal transactions and orders mentioned there require the approval of the guardianship court.
In the case of external permits, a distinction must be made between unilateral and bilateral or reciprocal legal transactions.
In the case of two-way or reciprocal legal transactions, the subsequent approval, which only becomes effective when the adviser notifies the cosignatory of it, Section 1829 (1). 1 sentence 2 It follows that a contract is pendingly ineffective until the approval becomes effective. The guardian is not bound by the contract, but the cosignatory is, unless there is a case of § 1830, i.e. the guardian pretends to authorise the cosignatory. The defendant can only end the state of suspense by requesting the guardian to inform him whether the permit has been granted, Section 1829(2). 2. then this notification from the supervisor can only be made within two weeks of receipt of the request. As in the cases of § 108 para. 2 sentence 2, section 177 subsection 2 sentence 2 only the silence of the representative leads to the invalidity of the legal transaction.
Section 1831 sentence 1 applies to unilateral legal transactions, according to which approval must be obtained before the legal transaction is carried out. The unilateral legal transactions pursuant to § 1831 sentence 1 include in particular the following declarations of intent by the legal representative on behalf of the person in custody or the unknown heirs
– the termination,
– the withdrawal or the request for conversion or reduction,
– the set-off,
– the challenge
– the approval of the order of a non-authorised person,
– the granting of procuration (§ 1822 No. 8),
– the acceptance of a performance surrogate as performance,
– but not: the acceptance of the service owed or the offer of contract or its acceptance, because both are components of a contract that comes into being. Without this approval the legal transaction is invalid.
From a legal point of view, this is a consent, i.e. prior agreement.
The reason for this is that, unlike in a contract, the opponent of the declaration has no influence on the levy and the associated effectiveness of the unilateral declaration of intent by the guardian.
The defendant would be exposed to uncertainty as to whether the declaration would become effective or not. However, the decisive factor is not the time at which the unilateral declaration of intent is made, but the time at which it takes effect. In the case of declarations of intent not requiring receipt, the coming into effect shall coincide with the execution, in the case of persons in need of receipt with access according to § 130. The consent of the guardianship court must therefore be available at the latest upon receipt.
Practical case with solution note
d) Legal consequence of lack of an internal and external permit
If only the necessary internal approval is missing, the legal transaction is effective without further ado.
It is conceivable, however, that the guardian is to be dismissed according to § 1908b, especially if he does not disclose the guardianship and thereby enters into a legal transaction in his favour. In addition, the guardian is liable to pay damages under § 1833 if the guardian suffers a disadvantage due to the legal transaction. The guardian can even make himself liable to prosecution according to § 266 StGB (German Criminal Code), if he carries out legal transactions within the scope of his scope of duties and thereby intentionally damages the assets of the person being cared for (abuse offence). However, strict requirements must be set for the proof of the internal facts, especially if the carer has not acted selfishly in the case of conditional intent.
If the required external approval is missing, the legal transaction is invalid. The adviser is only liable for damages to the opposing party: at best he can suffer economic disadvantages due to the invalidity of the contract or the nullity of the legal transaction. The counsellor is liable to pay damages to the cosignatory at least from c.i.c.
With regard to § 1908b, the above applies. A violation of the obligation to obtain an external permit has first of all the consequences from §§ 1828 to 1831. This means that the contractual partner can set a deadline for the legal representative to notify the court of the court’s approval and thus make the pending transaction effective — after the fruitless expiry of the deadline (i.e. through mere silence on the part of the supervisor), the transaction becomes finally invalid.
If the intended legal transaction does not take place, either because the counsellor fails to notify the cosignatory of the approval or because the cosignatory revokes the approval under section 1830, the counsellor may also be liable for damages under section 1833 if the counsellor suffers a disadvantage as a result. It is difficult to imagine a criminal liability of the supervisor according to § 266 StGB (German Criminal Code) solely because of the lack of an outside permit. It is mainly considered if the guardian deliberately makes or arranges a disposition of assets that is detrimental to the person being cared for (breach of trust) and therefore fails to obtain the necessary approval.
Excursus on § 266 StGB
(e) the object and date of the authorisation
The guardianship court has to examine whether the facts submitted for approval require approval and are capable of being approved, i.e. whether they meet the legal requirements for disposals and obligations requiring approval. …
f) What does the supervisor have to do if no authorisation is granted?
Practical case with solution note
(g) Multiple licensing practices
As a rule, the judicial officer will discuss the licensing practice with the supervisor.
In many cases, the courts refrain from approving each individual order or legal transaction. For example, it is often considered sufficient for the supervisor to have legal transactions requiring approval “approved” by telephone. This is permissible because, except in the cases of § 29 GBO, approval does not have to be given in writing. The Reichsgericht even considered it possible to tacitly approve orders by unobjected acceptance of the annual accounts; some courts did indeed regard this as tacit approval. Only in the case of a necessary external permit, which is required by the opposing party, is a written permit to be given to the adviser as proof of its existence and presented by the adviser to the opposing party in due time. This is a necessary procedure in view of the amount of work involved in obtaining authorisation, given the workload of the guardianship courts.
(h) Legal transactions not eligible for authorisation
aa) Donations in the name of the person being cared for
Gifts which the guardian wishes to make from the assets of the person being cared for; they are null and void per se, even if the authorisation of the guardianship court has been obtained.
The only exception is occasional gifts which are appropriate according to the circumstances of the person being cared for, § 1804 sentence 2, which applies, for example, to the case where outpatient nursing staff or home staff receive DM 100 as a cash gift at Christmas.
Practical case with solution note
bb) Other legal consequences of gifts
If a gift is disguised as a transaction against payment, the following shall apply to it pursuant to § 117, Sub-Clause 2 also § 1804. If, for example, the guardian acquires a piece of land as the legal representative of the guardian above the market value because he has not had this value determined, this constitutes a mixed donation that cannot be approved. When real estate assets are valued even by a publicly appointed and sworn appraiser, the appraisal must not be “blindly accepted”. The non-specialist must also check whether there are doubts about the objectivity of the expert opinion and whether it contains sufficient justification to make the result found appear plausible. This care can be expected from a reasonable person. If even the lay supervisor violates this obligation, he regularly acts negligently and must compensate the damage according to § 1833 step by step against assignment of the enrichment claims against the seller. However, the caregiver’s standard of care should be based on those of the circles of life to which the caregiver belongs.
Because of § 254 paragraph. 2, the contributory negligence of the guardian is in principle to be attributed to the person being cared for, even if the judicial officer is called upon in accordance with § 839. However, if the guardian was not able to represent the person in question, e.g. according to § 1804 sentence 1, and the legal transaction was therefore not eligible for approval at all, the judicial officer nevertheless
the contributory negligence of the carer cannot be credited and the state is liable according to § 839 in connection with Art. 34 GG for the damage of the cared for person because of the approval by the judicial officer.
Nothing else applies to the sale below value of objects of the ward. This is because the guardian always has to check for himself whether the transaction is still economically advantageous for the person being cared for and whether the actual documents that were available to the guardianship court at the time of approval are correct. With regard to § 266 StGB, however, strict requirements must be set for the proof of the internal facts, especially if the supervisor has not acted selfishly in case of conditional intent.
(i) Other cases
Furthermore, all transactions where the supervisor cannot represent the person being looked after are not subject to authorisation. This subheading covers legal transactions of a highly personal nature:
– § 1311 sentence 1: Conclusion of marriage, also the reservation of consent cannot extend to declarations directed to the entering into marriage, § 1903 subs. 2.
– §§ 2064, 2274: Establishment of a will or other testamentary disposition, also the – reservation of consent cannot extend to dispositions on account of death, § 1903 para. 2;
– Section 1516: Consent to a testamentary disposition of the spouse to exclude a joint descendant from continued community of property or deterioration of his or her position;
– §§ 1747, 1749, 1750 para. 3: Consent to the adoption of the child by the parents or the spouse
– Section 1762 paragraph 1 Sentences 3 and 4: Application by a parent for cancellation of the acceptance relationship due to invalidity of his or her consent;
– Section 2090, paragraph. 2: Cancellation of a contract of inheritance by the testator, but if the other part is under guardianship and if the cancellation of the contract of inheritance is covered by the scope of duties of the guardian, the approval of the guardianship court is required, § 2090 para. 3 sentence 1;
– Section 2296 paragraph. 1: Withdrawal from the inheritance contract.
j) Prohibited representation by the legal representative
Furthermore, the guardian cannot represent the person being cared for in the following cases
– where business is not part of his remit at all;
– which fall under the prohibition of self-dealing pursuant to Section 181;
– of transactions between the spouse or relative in the straight line of the caregiver and the person being cared for (Section 1795(1)(1))
– of legal transactions aimed at disposing of claims of the person being cared for against the carer secured by real or personal security (§ 1795 par. 1 no. 2);
– representation in such cases (Paragraph 1795(1)(3) or, in the event of an extended interpretation of Paragraph 181).
Case study: …
III. The individual approval facts
- Subject to approval at the regular
- The account block of § 1809 BGB
- Subject to approval in the case of other types of investment, § 1811 BGB
- The dispositions subject to approval of § 1812 BGB
- The exceptions of § 1813 BGB
Dispositions and obligations entered into for this purpose within the meaning of § 1812 are not subject to approval if the object of the performance does not consist of money or securities, para. 1 No. 1 If the person in care is also obliged to provide recurring services under the contract, § 1907 subsection 1 shall apply. 3.
If the object of the performance is currently money, Abs. 1 No. 1 does not, even if the original object was not directed at money and only later turned into such
has transformed. Likewise, if instead of money another object is accepted in lieu of performance or in the case of an electoral debt, because the performance owed is directed towards money and a novation or exercise of an electoral right constitutes a disposal of the performance owed.
According to this, the guardian can dispose of all the claims of the person in question that are not related to money, such as
– from a community or company relationship,
– transfer of property or transfer of rights, in particular those arising from the
object of purchase or the work performance,
– on surrender of property.
If the claim does not amount to more than 3,000 euros, the guardian can accept the money without approval, par. 1 No. 2 Thus, if, for example, a purchase price claim amounts to 10,000 euros, the guardian requires the guardianship court’s approval to accept the money, even if the debtor only wants to make a down payment of 2,000 euros, since, according to the clear wording, it is the amount of the claim that matters.
If it is a claim against a financial institution with which money was blocked in accordance with § 1807 no. 5, § 1809, the exemption of § 1813 paragraph shall apply. 1 No. 2 not, Abs. 2 sentence 1.
Interest, costs and other ancillary benefits shall not be taken into account when calculating the amount of the claim, Section 1813 (1). One number five.
- The account holder’s claim against the financial institution
Excursus: The current account
Summarizing the above considerations, the supervisor can dispose of claims and rights to performance without requiring approval and can conclude the necessary contracts:
– Claims arising from a corporate or community relationship, insofar as not directed at money and insofar as directed at money, up to EUR 3,000;
– Rent receivables, since uses;
– Pension entitlements, since benefits;
– Compensation and indemnification payments up to 3,000 Euro, in the cases of § 1813 para. 1 No. 5 in unlimited amount;
– Insurance benefits up to 3,000 euros;
– Claims from purchase contracts, if not directed at money, and if directed at money, up to 3,000 Euro;
– Claims for transfer of property, since not directed to money;
– claims for transfer of rights, as far as not directed to money and as far as
Money directed, up to 3,000 euros;
– Withdrawals from the unblocked savings account or transfers from the current account opened by the custodian himself/herself for the purpose of holding money or with the approval of the custodian pursuant to Section 1811 in unlimited amounts (Section 1813 par. 1 no. 3, par. 2), this also includes the approval of payment to a third party;
– Closure of the unblocked savings account or current account opened by the guardian himself/herself for the purpose of providing money or with permission according to § 1811, with credit balances in unlimited amounts (§ 1813 par. 1 no. 3, par. 2); if the guardian can already withdraw everything, he/she should also be able to close the account;
– Withdrawals from unblocked savings accounts or transfers from current accounts up to EUR 3,000 (Section 1813(1)(2));
– Approval of payment to a third party by the supervisor up to 3,000 euros, because this is the
performance to the carer;
– Closure of a savings account or current account not opened by the guardian with credit balances of up to EUR 3,000, although this also constitutes a disposal of benefits within the meaning of § 675 from the current account agreement, but these are not directed at money (1813(1)(1)), termination of the current account agreement is not associated with disadvantages;
– Cancellations of monetary claims up to 3,000 euros;
– Approval of a third party’s decision, which – if it were made by the supervisor – would not require approval;
– Assertion of conversion or reduction, if not directed at money and if directed at money up to 3,000 Euro,
– Declaration of withdrawal, if not directed at money and if directed at money, up to 3,000 Euro;
– Remission of a claim directed to money up to 3,000 euros;
– negative acknowledgement of debt up to 3,000 euros;
– Assignment of a claim for money up to 3,000 Euro;
– Pledge of a right directed to money (section 1275) or a claim directed to money (section 1279) up to 3,000 Euro;
– Acceptance of a compulsorily collected cash benefit up to 3,000 euros;
– Set-off with a claim of the person being cared for up to 3,000 euros;
– Contestation of a declaration of intent resulting in confiscation or refund up to 3,000 euros,
Exception: § 1813 paragraph 1 no. 3.
– In summary, it should be noted that the approval of the guardianship court is required under Section 1812 if the guardian
– via a claim
– or any other right by virtue of which the person concerned may claim a benefit,
– or wishes to dispose of a security
– or wishes to oblige the person being cared for to make such an order,
– the object of the performance owed is not money or securities,
– the claim does not exceed 3,000 euros and does not relate to blocked
– the carer accepts money that he/she has invested himself/herself and that has not been invested regularly and has not been obstructed
– the claim is one of the uses of the assets of the person being cared for
– the claim is directed to additional services,
– then the supervisor can accept the service owed without requiring approval.
For example, if the caregiver buys a car for the person being cared for, he or she obliges the person being cared for to pay the purchase price and thus to have money available. However, this obligation to dispose of money is not an obligation to dispose of a claim of the person being cared for; this claim is due to the third party. The purchase is therefore not subject to approval. Also the acceptance of the car does not require a permit, because it is neither money nor securities. Practical case with solution note
- The exemption according to § 1817 BGB
- The general authorization according to § 1825 BGB
- Property transactions requiring approval,§ 1821 BGB
The approval reservations of §§ 1821, 1822 are not complete. Further approval reservations are contained in the following regulations, among others:
– Section 112 paragraph. 1 sentence 1, paragraph 2 (Authorization and its revocation for the operation of an acquisition transaction;
– Section 1411 paragraph. 1 sentence 3 paragraph 2 Sentence 3 (conclusion of a marriage contract);
– Section 1484 paragraph. 2 Sentence 2 (refusal to continue the community of property);
– Section 1491 paragraph. 3 (Waiver of a descendant’s share of the total property in case of continued community of property);
– Section 1492 paragraph. 3 (Dissolution of continued community of property by the surviving spouse);
– Section 1595, paragraph. 2 sentence 1, § 1597 challenge of the marriage;
– Section 1600d para. 1 Sentence 2, Section 1600k (1) 1 Sentence 2: Acknowledgement of paternity and its challenge;
– Section 1728 paragraph. 2: Application by the father for a declaration of marriage;
– Section 2275 paragraph 2 Sentence 2, Section 2282 (2) 2, § 2290 paragraph. 3: Conclusion of the inheritance contract as well as its rescission and cancellation;
– Section 2347, paragraph. One, two, second sentence, § 2351: renunciation of inheritance and its cancellation;
– Section 1517, paragraph. 2, § 2347: Waiver of shares by a descendant in case of continued community of property;
– Section 2351 sentence 3, section 2347: Waiver of testamentary benefits;
– Section 607 paragraph. 2 Clause 2 ZPO: Divorce petition or petition to annul marriage;
– Section 640b sentence 2 ZPO: Commencement of proceedings in matters of parenthood;
– Section 181 para. 2 Sentence 2 ZVG: Application for divisional auctioning.
- The most important other transactions requiring approval, § 1822 BGB
- a) § 1822 No. 1 Obligation to dispose of the entire assets
- b) Section 1822 No. 2: Rejection of an inheritance or legacy
Excursus: Limitation of the heirs’ liability
- c) Section 1822 No. 3: Acquisition or sale of an acquisition transaction against payment or
Input of an on
the operation of an acquisition-oriented company agreement
Digression: § 1823
- (d) Section 1822 No 8
- e) § 1822 No. 10
- f) § 1822 No. 11
The commissioning of third parties Waiver of the appointment of an authorized signatory for the GmbH
of the person being cared for?
Surrender of the rented apartment and conclusion of continuing obligations, § 1907 BGB
Dr. Heinz Willer, Munich / Alexander Krafka, Würzburg*
Special features of electronic register keeping
For some time now, § 8 a HGB has made it possible for the commercial register, including the associated directories, to be kept in computerised form as an automated file as an “EDP register”. Only recently have some state governments (Bavaria, Brandenburg, Hamburg, Hesse, North Rhine-Westphalia, Saxony and Saxony-Anhalt) made use of this possibility. The same applies to the other registers of legal entities (registers of cooperatives, associations and partnerships). The path to the electronic register was accompanied by a large number of legislative amendments, most recently the “Law on Electronic Registers and Judicial Costs for Telecommunications” (ERJuKoG) and the “Regulation to Facilitate Register Automation”.
In contrast to the pure change of media from the card index land register to the computerised land register, electronic register keeping entails substantial changes in content, the basic features of which must be known not only to the direct users but also to the inspectors. This article is also intended to make it easier for register courts, which currently only have a paper register, to access the computerised register. Some of the changes are already planned or possible for the paper registers in preparation for the conversion.
A comprehensive presentation of the changes will be included in the new edition of the Handbook of Register Law by Keidel/Schmatz/Stöber (authors of the new edition are the authors), which is planned for the second half of the year.
The key point of the changes is that information from the automatically maintained registers of legal entities must be provided in both chronological and up-to-date form (Section 64 (3) HRV, Section 32 (3) VRV). The chronological representation (“chronological expression”) contains, like the previous register sheet, all entries from the transfer (Section 52 HRV) to the EDP register in chronological order. In contrast, the current issue (“current printout”) only includes the latest status of the entries. Entries or parts of entries which are red or otherwise invalid, in particular those which merely explain or substantiate an entry, are not included here. This current version must be generated automatically from the chronological entries.
In order to meet this requirement, the following changes were introduced for the computerised register, which are described in more detail below:
– New column division (§§ 61, 62 HRV);
– Register references — Entry of legal entities entered in a public register of companies, in each case with name/company name, registered office and registry office at the respective place in the entry text, no longer in the comments column (Section 61 No. 7, Section 62 No. 8 HRV);
– Prohibition of partial reddening (§ 58 para. 2 HRV) and
– Transitional texts — marking also of the repeating, explanatory or justifying entries (§ 58 a HRV).
New column division in the EDP register
The division of columns in the automated commercial register is based on the now revised provisions of Sections 61 and 62 HRV. The following special features should be emphasized:
Registered office and branch office
In column 2b), the registered office and, if there are branches, the company name, place and registry of the branches as well as associated explanatory texts on the establishment, cancellation or amendment (Sections 61 No. 2, 62 No. 2 HRV) are to be entered.
Registration of the representation arrangements
In the representation columns 3 (a) and b) for HRA, PR and VR, or 4 (a) and (b) for HRB and GnR, the representation arrangements shall be entered. In each case the sub-column (a) to register the general, abstract rules on representation, as they result from the law or the memorandum or articles of association This also includes, for example, an exemption from the restrictions of § 181 BGB (German Civil Code) granted by the articles of association or the articles of association for all legal corporate representatives or general restrictions on the power of representation for association board members in accordance with § 26 Para. 2 P. 2 BGB.
The sub-column b) contains the personal data (surname, first name, place of residence, date of birth or, in the case of registered legal entities, name/company name, registered office or branch, registry office) and, if applicable, a specific
power of representation of each designated representative. Thus, if a managing director has been granted exemption from the restrictions of § 181 of the German Civil Code by a resolution of the shareholders’ meeting on the basis of an enabling provision in the articles of association, this must be entered in sub-column b) under the name of the person concerned. This column also includes texts explaining changes, such as dismissal, a change in the power of representation or changes in the names of board members.
Especially the reorganization of the representation column makes it clear that this is not only necessary with regard to the creation of the current printout, but that it also considerably enhances the clarity and user-friendliness of the Commercial Register in general.
Otherwise, authorised signatories and the changes relating to them are also entered in a separate column for authorised signatories (column 5) in the case of cooperatives (§ 26 no. 5 GenRegVO).
Legal Relations column
References to other registries
Instead of the previously customary entry of a register office of a registered legal entity in the comments column, the new register rulings order the inclusion at the respective text passage (Sections 61 no. 7, 62 no. 8 HRV, Section 6 (4) VRV, Section 5 (3) PRV, Section 26 (8) GenRegVO).
The reason for this is that a registered legal entity is only clearly identified by its company name, registered office and registry office. As the changes of company and domicile become more frequent in modern economic life, this unambiguousness is becoming increasingly important.
The inclusion in the comments column, as practised so far, means that this important information does not participate to the necessary extent in the necessary publication, as the comments column is not made public. Even within a registration it is not sufficiently perceived as outsourced information. For the EDP register, the current handling would also lead to the loss of information when creating a current printout (Section 64 (3) p. 3 HRV), since the references to register offices, which in many cases are multiple, could not be assigned to a specific legal entity without a doubt.
III. prohibition of partial reddening
- Fifty-eight paragraphs. 2 HRV and § 11 para. 2 VRV only permit reddening of parts of entries if this does not impair the comprehensibility of the entry and the current expression. This prevents incomplete and therefore incomprehensible texts from appearing in the current printout, in which texts that are reddened or otherwise marked as invalid no longer appear.
Examples of the prohibition of partial reddening in the EDP register:
According to § 58 a HRV, transitional texts are those which merely explain or justify other parts of the entry. They are therefore not included in the current printout, whose task is simply to present the respective status as clearly as possible. These texts should be concise and easy to understand and should be easily separable from the text remaining for the current printout.
Examples of the use of transitional texts in the computerised register:
– In column 2, sub-column b), all texts on the establishment of or amendments to branches are transitional texts: “Established (. . .)”; “The name of the branch has been changed; now: (. . .)”; “The branch Frankfurt am Main has moved its registered office to Eschborn”;
– In the representation column, the texts on the appointment and resignation of organ representatives as well as on the change of personal data or the concrete power of representation are transitional texts: “Appointed: (. . .)”; “Retired: (. . .)”, “Representative authority of the managing director Müller Josef is changed, now: (. . .)”:
– The same applies to the “Prokurist” column, e.g. “Joint power of attorney together with another authorized representative of the authorized representative Hermann Meier changed, now: Single power of attorney: Meier Hermann, Grünwald, née 31.10.1960”;
– All entries in the legal relations column, sub-column a) concerning amendments to the articles of association or the legal relations to be entered in columns 2 or 3 are transitional texts which become obsolete when the new status is entered; e.g. “The company name was changed”; “The partners’ meeting of May 21, 2001 resolved to amend § 3 (Financial Year) of the Articles of Association”. In the latter example, the only relevant factor for the status of the company is the state of the articles of association, i.e.: “articles of association of 20 December 1995, as last amended by Decision of 21 May 2001”.
– In the legal relations column, sub-column c), all texts relating to entry, exit or changes in limited partners and their contributions are transitional texts, e.g: “Joined:
(. . .)”; “Limited partner contribution of the limited partner Uwe Braumüller changed, now: (. . .)”. Also
the texts on universal or special legal succession are transitional texts
Dr. Wolfgang Vonnemann, attorney and forced administrator, Berlin
The settlement of the forced administration proceedings by the forced administrator according to
Abolition of forced administration
“The ZVG does not deal adequately with the abolition of the forced administration procedure. . .
Nor does it deal with the consequences of repeal, although it is precisely these issues that are of great importance to those involved. . .” In fact, the handling of a forced administration procedure by the forced administrator after its abolition due to the lack of legal regulations contains a number of open questions, which are also not or only insufficiently answered by case law and literature and are accordingly handled differently in practice according to the author’s experience. The aim of this article is to provide answers to such practical questions that repeatedly arise in forced administration proceedings.
The forced administration proceedings are conducted in accordance with § 161 para. 1 ZVG was repealed by order of the competent local court. Mandatory grounds for termination are the acceptance of the bid in a forced sale, the withdrawal of the application by the creditor and the satisfaction of the creditor; the proceedings may be terminated pursuant to section 161 subs. 3 ZVG may be cancelled if the creditor fails to pay an advance on costs. In the following, a distinction is made, where necessary, between cancellation due to the award of a contract and cancellation due to withdrawal of the application. The treatment of the two remaining cases is the same as in the case of annulment on the grounds of withdrawal of the application.
The seizure of the property subject to forced administration ends when the forced administration proceedings are terminated. The debtor may, in the event of cancellation due to withdrawal of the application, again manage and use the property himself. In the event of the object being auctioned off, the purchaser is entitled to these rights.
Since the forced administrator must manage the property until the proceedings are terminated and his activity is only exceptional and only in relation to newly incoming and long-term
obligations to a lifting of the sequestration which becomes known to him before the notification of the decision to lift the suspension, he is regularly faced with the following situation when the decision to lift the suspension is notified: there are contracts with utilities such as electricity, gas and water companies. These are usually paid in instalments on a regular basis. A final invoice is generally issued once a year or after termination of the contract. There are no legal rules on notice periods; rather, these are agreed individually with the contractual partners.
For the forced administrator, the question arises as to how to proceed with such contracts. Are they taken over by the debtor or the purchaser? Must or can they be terminated, and when? A specific question is whether final accounts issued after the lifting of the compulsory administration procedure may or must be cleared? This question is of fundamental importance and arises for all claims outstanding at the time of the lifting of the forced administration. Furthermore, the question must be answered as to who is liable for claims from final accounts which are made after the assets have been disposed of.
The forced administrator has regularly concluded insurance contracts (residential building and liability insurance) for the property under forced administration. Do such building insurance contracts pass to the purchaser or the debtor? Can or must the forced administrator terminate insurance contracts? Is the forced administrator entitled to repayment of an insurance premium already paid for the period after the lifting of the forced administration? Is the forced administrator obliged to pay an insurance premium collected after the forced administration proceedings have been terminated?
In some cases, the forced administrator employs personnel to manage the property, e.g. a caretaker. Does such a contract pass to the purchaser or debtor? Does the receiver have to terminate employment contracts and what are the time limits for doing so? Can or must the forced administrator satisfy wage claims which extend to the period after the lifting of the forced administration?
Rental agreements concluded by the forced administrator bind the debtor after the lifting of the forced administration or they are transferred to the purchaser in accordance with § 57 ZVG. The validity of such agreements vis-à-vis the receiver ends with the termination of the
Receivership. Is the forced administrator — nevertheless — obliged to prepare operating and heating cost accounts for calendar years completed during the period of the forced administration proceedings after the forced administration proceedings have been terminated?
Who is obliged to pay out credit balances to the tenants and to collect claims for back payments?
In many cases, there are outstanding claims, especially against tenants, at the time of the lifting of the forced administration. Is the forced administrator obliged to collect such claims and, where appropriate, does that obligation extend to the extent that he must also enforce such claims in court?
Does the forced administrator have to continue pending proceedings at the time the forced administration is lifted?
Basic considerations for answering the open questions
III. treatment of individual questions
Treatment of contracts with utilities with the exception of
- Payments from the assets involved in the insolvency proceedings after the proceedings have been terminated
- Treatment of insurance contracts
- Treatment of employment contracts
- Obligations from rental and lease agreements
- (a) Settlement for periods completed at the time the proceedings are terminated
- (b) Settlement of accounts for periods not completed at the time the proceedings are terminated
- c) Payment of credit balances from service charge settlements
- debt collection
- (a) Views expressed in case law and literature
- (b) Own view
- (c) continuation of the forced administration procedure until the conclusion of active processes
The rapid handover of the property subject to forced administration, rapid accounting and the rapid and complete resolution of all “pending transactions” arising from the administrative activity is the task of the forced administrator after the forced administration proceedings have been terminated.
The forced administrator can and must terminate existing contracts, including insurance contracts, draw up operating cost accounts and collect outstanding debts and may also continue legal proceedings in this connection. He must settle liabilities that have arisen during the current proceedings. As has been shown, the legal possibilities for this are available.
Legal Officer Klaus Rellermeyer, Hamm
Rechtspflegerrecht since the 3rd RPflÄndG
The following treatise is intended to provide an overview of legislation, case law and literature on significant recent developments in the law governing judicial officers. The last significant change to the RPflG in 1998 was chosen as a starting point. For the future, further monitoring and updating of the report — in addition to the commentary literature — is planned at appropriate intervals.
Changes to the RPflG
The RPflG has been formally amended nine times during the reporting period (as of June 2002):
– Article 1 of the 3rd RPflÄndG adapts the general provisions on the status of the judicial officer to the changes that have taken place since 1969 as a result of the further transfer of former judicial tasks, the removal of reservations and improved training. The position of the Rechtspfleger as an independent organ of the administration of justice is strengthened above all by the explicit emphasis on substantive independence in § 9 RPflG, the substantial restriction of the submission obligations under § 5 RPflG, the reorganisation of the legal remedies under § 11 RPflG — in principle, the remedy permitted under the general procedural rules is now available — and the elimination of preparatory work under § 25 a. F. RPflG.
– Art. 4 BinSchHaftG editorially adapts §§ 3, 19b RPflG to the extension of the maritime law to the shipping law distribution order — including inland navigation.
– The LPartG provides same-sex couples with an independent family law institute, the Registered Civil Partnership, a secure legal framework for their partnerships and reduces existing discrimination. Art. 3 § 13 LPartG-Mantelgesetz assigns guardianship and family court tasks to the judicial officer by amending §§ 3, 14 RPflG, which concern registered civil partnerships. It has jurisdiction over such transactions in the same way as for spouses — with corresponding reservations from the courts.
– The AVAuslEntschG has created a new AVAG with provisions on the recognition and enforcement of foreign titles, including national procedural law to implement the “Brussels II Regulation”. Which is covered by Article 2(2). 3 AVAuslEntschG revised § 14 para. 2 RPflG reserves to the judge the decisions incumbent on the Family Court on applications for a declaration of enforceability or for a declaration of recognition or non-recognition of a foreign judgment under the “Brussels II Regulation”.
– The ZustRG reorganises the formal service of documents in court proceedings. Replacement service is simplified, service by registered letter with advice of delivery is possible, service against acknowledgement of receipt can be made to a wider circle of persons, new possibilities of service by fax or e-mail are used. The order appointing an attorney for service of process for a party residing in Germany, the authorization of service to the party if the residence of the attorney for process is unknown and the authorization of service at night and on Sundays and public holidays are no longer provided for in future, and the provisions of the ZPO will apply to service in proceedings before the BPatG, so that § 20 no. 7, § 23 (2) (1) (b) (b) (c) (b) (b) (b) (b) (b) (c)) and (c) (c) (c) (c) will be replaced by the provisions of the ZPO. 1 No. 8 of the RPflG by Article 2(2) 4 ZustRG could be repealed.
– The AdIntG reshapes the impact and the mediation of cross-border adoptions.
In accordance with § 2 AdWirkG, the guardianship court determines upon application whether an adoption based on a foreign decision or on foreign material norms is to be recognized or is effective in Germany. Under certain conditions, the guardianship court can pronounce that the child receives the legal status of a child adopted under German law, in accordance with § 3 AdWirkG. § Article 14 paragraph. 1(3)(f) of the RPflG is replaced by Article 4(4)(a). 1 AdIntG has been amended and reserves the above-mentioned decisions for the judge.
– Art. 3 GeistEigKostBerG editorially adapts § 23 RPflG to the new PatKostG, which should lead to a modernisation of the payment transactions of the German Patent and Trade Mark Office and the BPatG. In addition, the appellant is ordered to serve the order for enforcement of a decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Alicante fixing the costs of proceedings in Community trade mark matters.
– Article 2(2) 1 AVAGÄndG replaces the old version of the AVAG in § 20 no. 16a RPflG with the quote from the new AVAG. Furthermore, the Act inserts implementing provisions for the “Brussels I Regulation” into the AVAG.
– Section 36b of the RPflG, which was newly introduced by the AufgÜbertrG, enables the Länder to delegate individual judicial tasks — including the dunning procedure and the enforcement of fines and penalties — to the registrar of the registry.
General provisions of the RPflG
(a) the status of judicial officer
The BVerfG has decided that the fundamental right to be heard by a court is not guaranteed in
proceedings before the Rechtspfleger, but only before the judge within the meaning of Article 92 of the Basic Law. Although the judicial officer makes decisions within the scope of duties assigned to him as a “court”, he is not a judge within the meaning of constitutional law or court constitutional law. However, outside the scope of Article 103(1) 1 of the Basic Law guarantees the right to a fair trial on the essential principles of a constitutional procedure. The interested party must be given the opportunity to express his views before a decision affecting his rights is taken in order to influence the procedure and its outcome. Files of the judicial officer belonged to the public authority within the meaning of Article 19(1). 4 GG and should therefore be subject to judicial review. In so far as Paragraphs 62 and 55 of the FGG deny those whose rights are affected this possibility, they are incompatible with Article 19(1) of the FGG. 4 GG incompatible. Until a new statutory regulation is introduced, the judicial officer is obliged to give notice of orders within the scope of application of Sections 62 and 55 of the FGG by means of an appealable preliminary ruling if it is apparent that the intended decision affects the rights of third parties who would otherwise be barred from legal recourse.
The decision of the BVerfG has been widely echoed in the literature. Eickmann criticises it as a “sudden departure from what was previously generally considered necessary and right”; so far, it has been unanimously agreed that the judicial officer also has the right to be heard under Article 103(1). 1 GG to be granted. Habscheid points out that proceedings under the FGG are not administrative proceedings but judicial proceedings in civil matters. The hitherto almost undisputed opinion that the right under Art. 103(1) 1 of the Basic Law also applies to voluntary jurisdiction and is well-founded. The title of Section IX of the Basic Law refers to jurisdiction, which includes the voluntary jurisdiction exercised by judicial officers.
Dümig rightly considers the judicial officer to be a judge within the meaning of Article 97(2). 1 GG and as a court in the sense of article 103 paragraph. 1 GG on. He points out that the decision of the Federal Constitutional Court is based on the version of the RPflÄndG in force prior to 1 October 1998; since the third RPflÄndG, however, there has no longer been the slightest difference between judges and judicial officers with regard to objective independence.
Heß/Vollkommer emphasize the explicit inclusion of the objective independence of the judicial officer in § 9 n.F. RPflG in deliberate reference to judicial independence. The “downgrading of the judicial officer to the rank of ordinary administrative officer” contradicts the legislative tendency to transfer individual areas of the increasingly complicated administration of justice to specially trained judicial bodies. The removal of the judicial officer from the scope of application of the fundamental rights of the judiciary was questionable because there would then also be no claim to the statutory judicial officer and the requirement of a random distribution of the transactions arising would be dropped.
b) Exclusion and rejection (§ 10 RPflG)
Since the entry into force of the LPartG, the judicial officer has been excluded from exercising his office also in matters concerning his civil partner or a person with whom he is considered to be related by marriage by marriage in a straight line or up to the second degree in the collateral line on the basis of a registered civil partnership, even if the civil partnership no longer exists.
In insolvency proceedings, a multiple adjournment of the creditors’ meeting may be necessary to obtain creditors,
whose demands for participation in the vote on the deselection of the administrator have not been proven, justify the rejection of the judicial officer on the grounds of partiality
c) Appeals (§ 11 RPflG)
Following the new version of § 11 RPflG, the main point of contention was whether the official in charge of appeals in the cost and remuneration determination proceedings would continue to be available for the
to carry out a review of interlocutory revision. Since the new version of the right of appeal in the context of the reform of the ZPO, the court of first instance has always had the power to remedy an immediate appeal which is deemed to be well-founded, so that the earlier dispute has lost its significance.
With regard to proceedings in land register matters, Kramer, following a decision of the Meiningen Regional Court, is of the opinion that in the event of an appeal against the decision of the judicial officer, not only the latter but also the judge will have to examine a remedy in the future, because the land register court is only the judge within the meaning of the GBO, but not the judicial officer. This view fails to take account of the fact that the legislator’s intention in adopting FP3 was to strengthen the position of the judicial officer, to relieve the burden on the judge of the same instance and to avoid the latter having to deal with areas of law that were remote for him. There is no longer any room for the judge’s decision on interlocutory revision. In civil proceedings, a decision on interlocutory revision is usually made by means of a reasoned decision. If the judge, instead of the judicial officer, decides on interlocutory revision, this shall not be ineffective.
With regard to the general procedural provisions within the meaning of Article 11(1) Paragraph 159 of the GVG belongs to Paragraph 1 of the RPflG. Therefore, if a request for judicial assistance submitted by the judicial officer is rejected, the judicial officer may obtain a decision from the Higher Regional Court without prior involvement of the judge of his instance (§ 28 RPflG).
(d) Compulsory legal representation by a lawyer (Section 13 RPflG)
The 3rd RPflÄndG does not require a lawyer to file an immediate appeal in the
civil procedural cost and remuneration determination procedures have been introduced. This also applies if the immediate appeal is lodged with the Appeals Court, because it can also be declared to be on record at the Registry, as well as for further written statements in the appeal proceedings. Only in the case of an oral hearing is representation by a lawyer admitted to a local or regional court — not necessarily the appellate court — necessary.
Specific questions concerning the jurisdiction of the judicial officer
If the law does not provide for the probate court to carry out the requested judicial activity and is
Accordingly, the BayObLG does not regulate the functional jurisdiction, so in the opinion of the BayObLG both the judge and the judicial officer can decide on the application submitted. Since the RPflG cannot, by its very nature, contain a judge’s reservation for non-regulated tasks, it must be assumed, contrary to the opinion of the BayObLG, that the Rechtspfleger has sole responsibility in all areas of full and reservation transfer.
According to the OLG Karlsruhe, a conflict of jurisdiction between the judicial officers of the courts of two instances is to be decided by the judge in accordance with § 28 RPflG — in the decided case: by the OLG.
- b) Family, guardianship and care matters (§ 14 RPflG)
An overview of the new tasks of the Family Court since July 1, 1998 with references to the jurisdiction of the judge and judicial officer is contained in Künkel’s compilation.
The Rechtspfleger is responsible for proceedings to amend a parental maintenance provision unless there is at the same time a difference of opinion between the parents with custody of a minor child (§ 14.1 no. 5 RPflG) or a maintenance dispute is pending in which the judge can at the same time give an order on the application (§§ 6, 5.1 no. 2 RPflG). The replacement of the consent of the non-custodial parent to the appointment is the responsibility of the judicial officer.
According to § 56g para. 5 sentence 1 of the FGG, an immediate appeal against the decisions of the guardianship court referred to therein regarding remuneration, reimbursement of expenses, etc., of the guardian and regarding payments by the ward to the state treasury without reaching the appeal value of EUR 150 is only possible if the court allows it because of the fundamental significance of the case. The Rechtspfleger decides on the admission. If the immediate appeal is not admissible under this provision, the immediate reminder pursuant to § 11 para. 2 RPflG; this may also be raised against the non-admission of the complaint. In reminder proceedings, if the judicial officer does not remedy the situation, the judge may allow the immediate appeal.
In the correct view of the Higher Regional Court of Cologne, the judicial officer is, due to the strengthening of the position of the judicial officer by the 3rd RPflÄndG, authorised to file cases concerning the care of children in accordance with § 65a FGG in any case if at the time of the request for filing no current business reserved for the judge is to be dealt with.
(c) Insolvency proceedings (Article 18 RPflG)
- Article 18, paragraph. 2 RPflG allows the judge to reserve the insolvency proceedings in whole or in part after the opening if he deems this to be necessary. As a rule, such a reservation would no longer be appropriate because of the improved status and training of the judicial officer. A reservation made by way of exception must relate to the entire further proceedings or to certain stages of the proceedings, not only to individual decisions on specific issues and certainly not to certain decisions in all proceedings without reference to a specific individual case.
In the view of AG Köln, which must be rejected, the judge can also take over the insolvency proceedings even if jurisdiction was transferred to the judicial officer with the decision to open proceedings because the judge had not reserved the right to conduct the proceedings.
After the opening of the proceedings the determination of the remuneration of a temporary insolvency administrator shall be incumbent on the judicial officer, because section 18 subs. 1 RPflG draws a temporal boundary between the jurisdiction of the judge and that of the judicial officer.
The judicial officer is responsible for rejecting an application for residual debt discharge that is inadmissible due to formal defects. The judge shall be notified of the measures referred to in § 18 para. 1 No. 2 RPflG only if a creditor applies for the refusal of residual debt discharge.
d) Cases of enforcement (§ 20 RPflG)
The procedure for making the affidavit in accordance with §§ 807, 836, 883 ZPO has been assigned to the bailiff by § 899 ZPO since 1.1.1999. The judicial officer is now only responsible for decisions on submission to the competent court and on an objection by the debtor, as well as for the order for early deletion from the debtors’ register, while the judge is responsible for issuing an arrest warrant and rejecting the application made for it. The judicial officer was considered to be responsible for the proceedings initiated before the change of law and not yet concluded by the submission of the affidavit. Proceedings under Section 889 of the Code of Civil Procedure continue to be the responsibility of the judicial officer at the enforcement court.
Recent state law has assigned tasks to the judicial officer (§ 37 RPflG):
– in Bavaria: the issuing of an enforcement order in respect of a settlement concluded before a conciliation body (with the exception of a notary);
– in Saxony: the issuing of certificates of harmlessness;
– in Schleswig-Holstein: the issuing of a counselling assistance certificate for exemption from
Obligation to pay the remuneration for a conciliation procedure.
Prof. Dr. Werner Bienwald, Dresden
Are compensation agreements under private law permissible in care law?
- In the literature on § 1836 BGB, the view is expressed that a claim to remuneration on the part of the carer/counter-caregiver can be created by a private law agreement between the carer and the person being cared for. The appointment of an adviser does not affect the legal capacity of the person concerned. If a reservation of consent ordered under Paragraph 1903 of the Civil Code covered the content of the remuneration agreement, the carer to be remunerated could not give the necessary consent himself because of the self-dealing involved (Paragraphs 181 and 1795(2) and Paragraph 1908i(1)(1) of the Civil Code). In such cases, a supplementary supervisor (§ 1899 BGB) must then be appointed.
In order to protect the person being cared for who has entered into a remuneration agreement under private law, abuse control of the judicial officer must take place regularly. On the basis of the current findings of the care procedure (in particular on the basis of promptly obtained expert opinions) or more recent information (e.g. from home directors or relatives, etc.), it had to be examined whether the person being cared for could actually be assumed to have legal capacity. According to § 12 FGG, concerns must be investigated by means of a personal hearing and/or medical assessment.
If the private-law remuneration agreement did not raise any objections, the remuneration was to be paid in the amount of the agreement reached in accordance with § 56 g (1). 1 FGG (according to HK-BUR/Bauer/Deinert, Betreuungs- und Unterbringungsrecht, 15. Erg.-Lfg. March 1999, § 1836 marginal no. 36).
Zimmermann deals with the question of agreed remuneration in the 3rd edition. of the law of care (still published as Damrau/Zimmermann) when discussing substantive legal objections and pleas of the person being cared for. There it says (§ 1836 marginal no. 60): “Although § 1836 does not provide for a binding of the VormG to a remuneration agreement, it would be effective if the person being cared for was legally competent at the time of the agreement; since a lawsuit in view of § 56 g FGG would lack the need for legal redress, the VormG must review the alleged agreement and, if necessary, fix the amount at that level”.
- The idea of having an agreement on the fee/amount of the fee concluded between the caregiver and the person being cared for is obviously based on the consideration that the person being cared for remains fundamentally capable of acting on his or her behalf despite the appointment of a caregiver (apart from § 104 no. 2, § 105 para. 1 BGB). It does not seem to have been noticed that the person being cared for should nevertheless be subject to a control with regard to the fee agreement reached and that his or her ability to act (in the broadest sense) is thus again questioned. Above all, the question arises on what legal basis a guardianship court should be able to carry out such a control of abuse as Bauer/Deinert (loc. cit.) has in mind. Supervision and control is exercised by the guardianship court according to §§ 1837 ff. (in connection with § 1908 i Abs. 1 S. 1 ) BGB over the guardian, but not over the person being looked after. And whether the person being cared for concludes legal transactions for which he/she may have lacked the legal capacity, the person being cared for must check within the scope of his/her competence. If he is possibly not able to do so because he is involved in the transactions, and if the guardianship court is to take action instead, the suspicion should actually arise that there may be something wrong with this construction, because the guardianship court conducts business for the guardian on close inspection. Whether the person in question was in a position to reach an agreement on remuneration could at most be the subject of a further supervision procedure, the result of which would be the expansion of the scope of duties of the previous supervisor or the appointment of a further supervisor with the same scope of duties and, if necessary, the ordering of a reservation of consent covering the agreement on remuneration, because otherwise the person in question would/could cause himself/herself considerable (financial) damage through uncontrolled declarations of intent.
- Another consideration also makes the views expressed on the fee agreements between the carer and the person being cared for appear questionable. It is questionable whether, in view of the overall concept of the right of care (as well as guardianship law), freedom of contract and autonomy exist with regard to remuneration. Both the guardian and the custodian are appointed by the court. Their mission is determined directly by law (§§ 1793 ff. BGB) or is determined by the court on the basis of legal requirements (§ 1896 Abs. 2 und 3 BGB). The person being cared for is neither in a position to issue the care order to the caregiver, nor is he/she authorised to change or withdraw the order issued by the court.
The wishes of the person being cared for must be taken into account by the caregiver within the framework of the legal requirements (§ 1901 BGB) and the economic and financial possibilities of the person being cared for. Nevertheless, his or her actions are binding in the external relationship, even if he or she has not complied with the wishes of the person being cared for.
Thus, if the person being cared for cannot determine the performance of the caregiver in its fundamentals and limits, he or she also lacks the criteria to determine the consideration or to exert influence on its determination. If one were to assume the permissibility of free fee agreements within existing support (the opposite applies in the case of authorisation), both sides could set the standards themselves as they wished and, for example, make different performance assessments with regard to decisions on personal care and asset custody, also agreeing on “contingency fees”.
It would be conceivable, for example, that the caregiver does not want to grant remuneration for decisions of the caregiver that are unpleasant for him or her, but which reward decisions that are pleasant for him or her excessively favourably. According to which standards the guardianship court (Rechtspfleger? Richter?) is to exercise abuse control here is not yet apparent. One could also think of questions of competition law and the like.
If the agreement is to be binding on the court (§ 56 g FGG) when it determines the remuneration of the guardian, the court wonders why the court should still take action, except that it will help the agreement to become enforceable by the form of the court order.
- Another aspect speaks against the permissibility of compensation agreements in the manner discussed here. As far as I can see, he’s been ignored so far. It is not only important that the person being cared for is legally capable of such an agreement (e.g. according to §§ 104 ff. BGB). It must also be the supervisor.
Already the consideration that in the case of a reservation of consent, the carer as a contractually involved person could not give the required consent (also because excluded, not refuse), if the agreement belongs to the circle of declarations of intent subject to approval, should and must have given rise to the consideration and examination of whether the matter of “remuneration agreement on one’s own behalf” belongs and can belong to the tasks of a carer.
As a caregiver, he or she is responsible for the affairs of the person being cared for, not his or her own. For this reason, case law does not grant the carer any remuneration for the preparation of the remuneration and expense accounts, because this is not a matter for the person being cared for, but for the carer. If the faithful caregiver agrees on the “if” and/or the “how” of a remuneration for himself as a caregiver, he acts on his own behalf. For this very reason, he or she cannot at the same time represent the person being cared for according to § 181 BGB. Acting on its own is not an act of care, and therefore does not fall within any of the areas of responsibility assigned to it, and cannot be the subject of a set of tasks as a caregiver.
Whether the guardian commits a breach of duty through such agreements as are considered permissible by the authors mentioned and must therefore reckon with commandments and/or prohibitions by the guardianship court (§§ 1837, 1908 i BGB) can remain undiscussed here. In any case, in the absence of the competence of the supervisor, an agreement cannot be effectively reached. There is also no legal basis for any assumption that the agreement could be considered pending judicial approval, nor for judicial approval.
If the caregiver allows the caregiver to make use of the services outside of the care, both parties can contractually negotiate the conditions of their cooperation; likewise, within the framework of a permissible power of attorney, a (provident) principal can freely determine the remuneration for his or her authorized representative. There is no room for this in the legal relationship of caregivers.
The guardianship court will therefore carefully examine the periodic accounting as well as reports and other sources of information to verify the management of the care.
have investigated whether evidence of illegal remuneration agreements and their settlements can be found and lodged an objection to them.
Real estate and land register law
WEG § 25 para. 2 Sentence 1; BGB § 1066 (voting rights, usufruct)
- a) The encumbrance of the condominium with a usufruct does not affect the voting right of the condominium owner (§ 25 para. 2 sentence 1 WEG). The voting right does not pass to the usufructuary, not even with regard to individual items of the resolution. Furthermore, the condominium owner does not have to exercise his voting rights either generally or in individual matters together with the usufructuary.
- b) However, the condominium owner may be obliged in individual cases to take account of the usufructuary’s interests when voting, to act in accordance with the usufructuary’s instructions or to grant him/her a proxy. In the absence of an express agreement, the creation and scope of such an obligation shall be governed in particular by the regulation on bearing the costs of the residential property which is not subject to usufruct. However, such an obligation shall not affect the validity of the decision.
Federal Court of Justice, decision of 7 March 2002, V ZB 24/01
BGB §§ 313, 273 para. 1, §§ 812, 818, 883, 894; KO §§ 17, 24, 49 para. 1 No. 3, 4 (cancellation of a notice of conveyance)
If the bankruptcy trustee demands the deletion of a notice of conveyance which was registered prior to the opening of bankruptcy proceedings on the property of the owner of the real estate on the basis of a formal purchase agreement in favour of the buyer, the buyer cannot oppose the demand with a right of retention due to the purchase price payments made by him to the selling owner prior to the opening of bankruptcy proceedings.
Federal Court of Justice, ruling of 7.3.2002, IX ZR 457/99
EGBGB Article 233 §§ 2 a, 2 c; GGV §§ 4, 7; GBO § 19 (registration of a right of possession)
For the registration of the user’s right of possession “suffices” among other things the presentation of the transfer contract. The provisions of the Building Land Register Order (GGV) are not void due to violation of higher-ranking law or due to the absence of a basis for authorisation.
Brandenbg. OLG, order of 7 February 2002, 8 Wx 41/01
GBO §§ 18, 20; BGB §§ 873, 398 (intermediate disposition, missing conveyance)
- The JCC must carry out a full examination of the application for registration and may not restrict itself to some of the conditions for registration, subject to further examination (and objections).
- In the event of a challenge to an interim order, the examination in appeal proceedings also extends to whether the procedural requirements of the contested decision were met.
- If, according to the wording of a notarial deed, the claims of the Purchaser under a contract for the purchase of real estate have been assigned to a third party, it is to be assumed that the third party is not included in the real property rights determined by the conveyance and registration notice.
the legal status of the cedant has been established.
Thür. OLG, Order of 3 May 2002, 6 W 682/01
GBO § 19; BGB §§ 877, 876; WEG § 10 Abs. 2 (Content of the special right of use)
- If a condominium owner is allocated a certain area of land for special use as a car parking space, any other use of this area is thus excluded.
- The registration of the special right of use in the land register requires the approval of the easement holder of a children’s playground shared use right, which is based on the same
- The authorisation of the person entitled to a walking and driving right is not required if the exercise of this easement is restricted to another area of the property.
BayObLG, decision of 9 April 2002, 2Z BR 30/02
GBO § 82 (official procedure for land register entry)
1) If the co-heirs plan to convert the property into residential property, there is a justified reason for a deferment in the sense of § 82 sentence 2 GBO.
2 In principle, within the two-year period of § 60 para. 4 KostO has no reason to enforce the land register correction.
Frankfurt Higher Regional Court, Order of 4 February 2002, 20 W 486/01
With note from Wiss. Mitarb. Dipl.-Rpfl. Ref. jur. Michael Dümig, Mainz
BGB § 1105; ErbbauVO § 9; ZVG §§ 12, 44, 52 (agreement on a different ranking order)
The agreement reached by the parties following the deviating order of precedence with regard to § 12 of the ZVG that, in deviation from § 12 of the ZVG, the common law is to be included in the lowest bid in the event of a forced sale from real property is not registrable.
The parties involved cannot establish a material ranking between several parts of the real-estate right in such a way that, in the event of enforcement of due individual payments into the liable property, the common law can be included in the lowest bid as the creditor’s claim in advance pursuant to § 44 of the ZVG.
Münster Regional Court, Order of 21.2.2002, 5 T 27/02
Family and guardianship law
ZPO § 621a para. 1 sentence 2, section 329 (2) 2; FGG § 16 (effective service)
In family cases in the area of voluntary jurisdiction, the time limit for appealing against a judgment which has not been delivered shall begin to run when the judgment is served on the appellant and not when it is last served on one of the parties.
Federal Court of Justice, decision of 17 April 2002, XII ZB 186/01 (+)
BGB § 1617 c paragraph. 2, § 1618 p. 6 (change of name of a named child)
- Do spouses according to. If a premarital child is given its married name in accordance with § 1618 sentence 1 of the Civil Code, then the legal possibility of changing the child’s birth name is assessed
exclusively according to § 1617 c paragraph 2 No. 1 BGB.
- After divorce of the marriage, the child can therefore change the name of its only
custodial mother according to. § Section 1355, paragraph. 5 p. 2 BGB do not connect.
- Due to deviation from the contrary legal opinion of the OLG Dresden (StAZ 2000,341), the matter will be dismissed in accordance with § 312 BGB. § Article 28(2) 2 FGG was referred to the Federal Court of Justice for a decision.
OLG Hamm, Order of 7 February 2002, 15 W 274/01
BGB § 1897 Abs. 4; Basic Law Article 103 (1) 1 (selection of a supervisor, legal hearing)
- The proposal of the person being cared for to appoint a certain other person as a caregiver,
justified — regardless of his legal capacity — according to § 1897 Abs. 4 sentence 1 BGB a priority of the suggested before all other persons coming into consideration.
- Where a pleading is lodged after the date of the order made in the written procedure, the Court of First Instance shall state whether it has received and taken cognisance of it.
- If the necessary information is not provided and it is therefore not possible to determine whether the pleading was received by the court before the order was issued, it must be assumed that it was received in good time.
PfälzOLG Zweibrücken, decision of 7.3.2002, 3 W 14/02
FGG § 50 para. 5, § 67 para. 3; BGB §§ 1908 e ff. (Content of the application for remuneration)
- For the conclusive assertion of his claim for remuneration, the guardian of the proceedings shall issue a proper statement of account which establishes the due date and which is in accordance with the general
requirements for the auditability of invoiced time fees are met.
- In addition to stating the concrete necessity, the customer must also state the place, date and duration (time of beginning and end) of the activity to be invoiced.
- If the guardian of the proceedings also wishes to be reimbursed for travelling time to meetings, he must also state why he may consider it essential to
instead of asking them to visit you — for reasons of saving time and money.
Brandenbg. OLG, order of 28.1.2002, 15 WF 235/01
BGB § 1835 para. 3; FGG § 67 para. 3; BVormVG § 1 (RA as procedural guardian)
- A lawyer who has been appointed as a guardian of the proceedings in a support procedure can rely on being able to settle a claim for reimbursement of expenses in accordance with BRAGO if the judge has informed him of facts relating to the individual case at the time of his appointment which clearly justify the need to consult a lawyer in the specific case.
- In this case, it is irrelevant whether or not a specifically legal activity has actually taken place in the course of the assistance procedure.
BayObLG, decision of 16 January 2002, 3 Z BR 300/01
BGB § 1836 (Expiry of the claim to remuneration)
The preclusive period according to § 1836 para. 2 S. 4 BGB begins with the emergence of the claim, so in each case with the execution of a support activity. The claim is not due
The precondition for the commencement of the period of time, a restoration to the previous state of affairs due to failure to observe this period of time is excluded, as is the suspension of the period.
SchlHolst OLG, Order of 6 February 2002, 2 W 193/01
BGB §§ 1835, 1836, 669, 670 (reimbursement of legal fees)
If, within the scope of the scope of duties assigned to him/her, the supervisor commissions a lawyer to bring an administrative court action, the costs incurred for this are to be reimbursed from the state treasury in the amount of the PKH remuneration.
Zweibrücken District Court, decision of 18.4.2002, 4 T 223/01
BGB § 1908 b (Several supervisors)
If several caretakers have been appointed, good cause for the dismissal of one caretaker is already given if it later turns out that the requirements of § 1899, Subsection 1899, Subsection 1899, are not met. 1 BGB for the appointment of more than one caregiver either did not exist from the beginning or ceased to exist later.
SchlHolst OLG, Order of 6 February 2002, 2 W 199/01
Law of succession and estate
BGB §§ 2258, 2270, 2271 (cancellation of a contract of inheritance)
- For the annulment of a contract of inheritance by subsequent spouse’s last will and testament, which is submitted to the
contract of inheritance, although not objectively contradictory in all points, but as a comprehensive and
is to be interpreted as a final rule.
- On the interpretation of the clause contained in a spouse’s will that the survivor “may freely dispose of the entire estate” if the spouses had stipulated in a previous inheritance contract that the survivor “may amend this disposition and freely dispose of the estate”.
BayObLG, decision of 18 March 2002, 1 Z BR 46/01
BGB § 2233 paragraph. 3; BeurkG § 24 Para. 1 (Testament of a testator who is unable to speak and write)
- According to the decision of the Federal Constitutional Court of 10 January 1999 (NJW 1999,1853), the determination of the inability to speak of a testator with multiple disabilities is also based solely on § 2233.3 of the Federal Constitutional Court’s decision of 10 January 1999 (NJW 1999,1853). 3 BGB; therefore only the actual conviction of the notary at the time of the notarisation is decisive. The determination of the inability to speak is not
corresponding express declaration of the notary in the notarial deed in accordance with § 3. § Section 24 paragraph. 1 p. 2 BeurkG dependent.
- The involvement of a person of trust within the meaning of § 24 para. 1 BeurkG presupposes that the notary assigns to the participating person the personal joint responsibility for determining the will of the testator during the notarisation process; the mere presence of this person during the notarisation is not sufficient.
- The necessity of consulting a trusted third party for the notarisation does not infringe the prohibition of discrimination against disabled persons (Article 3 Paragraph 3, Sentence 2 of the Basic Law), even if the notary is convinced that he can communicate sufficiently with the testator because, on the basis of personal acquaintance, he is familiar with his way of communicating through inarticulate sounds.
OLG Hamm, Order of 26 February 2002, 15 W 385/01
Commercial and registration law
GmbHG §§ 7, 8 para. 2, §§ 11, 55–57 (payment of a cash contribution)
- a) On the question of the valuation of the assets of a pre-GmbH, the commencement of which has already led to an organisational unit to be regarded as an enterprise in the period between the commencement of business activities and entry in the Commercial Register.
- b) The payment of a cash contribution from a capital increase, by which the debit balance of a
bank account is returned, may also have been freely disposable if the
credit institution provides the Company with a loan in another account in consideration of the capital increase, which reaches or exceeds the amount of the contribution
- c) In the case of a capital increase, the cash contribution has already been made for the (final) free disposal of the management if it has come into its unrestricted area of disposal after the capital increase resolution and does not flow back to the depositor (abandonment of BGHZ 119.177 — Guidelines b, c).
- d) When filing the capital increase for entry in the commercial register, the management must assure that the contribution amount has been paid in for the purposes of the company for the (final) free disposal of the management and has not been repaid to the depositor, even after this.
Federal Court of Justice, judgement by default of 18.3.2002, II ZR 11/01
GmbHG §§ 6, 30, 31 para. 3, § 43 paragraph. 2 (Ausfallhaftung)
- a) The Ausfallhaftung of § 31 par. 3 GmbHG does not cover the entire deficit not covered by equity, but is limited to the amount of the share capital figure.
- b) Ausfallhaftung from the point of view of an intervention that destroyed the company’s existence (Federal Court of Justice, judgement of 17 September 2001 — II ZR 178/99, ZIP 2001,1874,1876) also affects those co-shareholders who, without having received anything themselves, have contributed to the destruction of the company’s existence by agreeing to the withdrawal of assets.
- c) For the liability of a person who acts as a de facto managing director in accordance with § 43 para. 2 GmbHG, it is not sufficient that it has an influence on the managing directors within the company in accordance with the articles of association. It is also necessary to act in a way that is outwardly prominent and usually attributable to the management (following BGHZ 104,44,48).
Federal Court of Justice, ruling of 25 February 2002, II ZR 196/00
HGB §§ 1, 105 para. 1, Section 106 (1). 1, § 161 (purpose of a partnership)
A partnership whose purpose is to a large extent the development and sale of software can be entered in the commercial register.
BayObLG, decision of 21.3.2002, 3 Z BR 57/02
HGB § 13 h; RPflG § 17 No. 1 b (relocation of the registered office of a GmbH)
2 HGB first of all the formal correctness of the
OLG Frankfurt, decision of 30 April 2002, 20 W 137/02
GmbHG § 3 para. 2, § 6 para. 3 p. 2 (Obligation to provide ancillary services to the management)
The provision in the articles of association of a limited liability company in which several partners who have been appointed as managing directors at the same time are involved, that resolutions of the partners’ meeting require unanimity, cannot normally be interpreted as meaning that
that this creates an obligation of the shareholders to provide ancillary services for the management, which rules out the possibility of a unilateral resignation from the office of managing director.
OLG Hamm, Order of 24 January 2002, 15 W 8/02
GmbHG § 4 a para. 2; FGG § 144 a para. 4 (Relocation of business premises)
Even after the entry into force of § 4a para. 2 GmbHG the legally effective regulation of the seat of a GmbH by articles of association does not become void by the fact that subsequently the business premises are shifted from the place of the statutory seat to another place. The
In this case, the initiation of proceedings for the dissolution of the office is therefore still not possible (continuation of BayObLGZ 1982,140).
BayObLG, decision of 20.2.2002, 3 Z BR 380/01
GmbHG §§ 5, 7, 8, 9, 9 a, 9 c (payment on the minimum capital contribution)
If a shell company is used, the control by the court of registration must be carried out in appropriate application of the regulations on minimum capital and minimum share capital contributions and on securing the raising of contributions.
This applies not only to the use of a shell company founded on stock, but even more so if a shell company that has become “empty” as a result of the subsequent discontinuation of the company is to be used (submission to the Federal Court of Justice due to deviation from OLG Frankfurt GmbHR 1992,456 and BayObLG GmbHR 1999,607).
Brandenbg. OLG, order of 28.1.2002, 8 Wx 60/01
AktG Sections 52 (1), 9 new version, 112; GBO Sections 22, 29, 53 (2) sentence 2, 71 (1)
(land register inaccuracy, post-formation)
- With the retrospective revision of § 52 AktG, the legislator wanted to create a curative effect, but not to render a transaction effective according to the previous legal situation ineffective through subsequent, retrospective amendment of the law.
- With the new version of § 52 (1) Section 9 of the German Stock Corporation Act does not permit a restriction, but only an extension of the existing exemption provision of Section 52 (52) (1) of the German Stock Corporation Act. 9 AktG (old version) to the
Post-formation provision of § 52 (1) 1 of the German Stock Corporation Act (AktG).
- As a rule, the acquisition of assets by a stock corporation does not fall under the exemption regulation of § 52 para. 9 AktG n.d. Something different applies if the acquisition of assets is normal and occurs regularly for the concrete business operations of the stock corporation. However, this is the case when a property is purchased by a real estate management company.
LG Hagen, decision of 8.2.2002, 3 T 593/01
Legal aid law
ZPO § 121 paragraph. 1 (Assignment of a lawyer)
Where representation by lawyers is mandatory, the appointment of a lawyer willing to represent the applicant shall be mandatory where legal aid is granted.
This also applies if the party filing the petition (here: insolvency administrator) is himself a lawyer.
Federal Court of Justice, decision of 25 April 2002, IX ZB 106/02
BRAGO §§ 131, 132, 13 (several objects, same matter)
If, on the basis of a uniform mandate, a lawyer simultaneously provides advice on the assertion of child support and on a right of access, the costs are only one matter, even if two separate advice assistance certificates have been issued for this.
Mönchengladbach District Court, decision of 13.3.2002, 5 T 44/02
ZPO § 120 para. 4; RPflG § 11 (11) 2 (Appeal against refusal to review PKH requirements)
If, after legal aid has been granted, the judicial officer orders a review of
changes in personal and economic circumstances (§ 120 para. 4 ZPO), the legal remedy to be lodged by the treasury is the (temporary) reminder in accordance with § 11 para. Two RPflG.
LAG Nuremberg, decision of 4.4.2002, 7 Ta 56/02
Civil proceedings and enforcement
ZPO § 574 n.F., § 568 para. 2, Section 793 Paragraph. 2 old version; EGZPO n.F. § 26 No. 10 (legal appeal)
If it cannot be established whether a non-declared decision of the Appeals Court has been handed over to the Registry before 1 January 2002, the most-favoured nation principle applies.
Federal Court of Justice, decision of 11 April 2002, IX ZB 101/02
ZPO §§ 765 a, 850 c, 850 f para. 1 (immoral hardship due to the costs of a
Protection against execution according to § 765 a Abs. 1 sentence 1 of the Code of Civil Procedure is not to be granted solely because the elderly debtor, after the attachment of her pension and her survivor’s benefits, must apply for social assistance as a result of the amount of the costs of her accommodation in a nursing home for the elderly necessitated by illness.
PfälzOLG Zweibrücken, decision of 14.2.2002, 3 W 6/02
ZPO § 903 (repeated submission of the affidavit)
- In the case of a self-employed person, it is not sufficient to indicate that the debtor continues his previous activity in order to prove the acquisition of assets within the meaning of section 903 of the Code of Civil Procedure.
- The debtor’s own indication that he expects his economic situation to improve in the foreseeable future also does not allow any conclusions to be drawn about a concrete
Acquisition of assets.
OLG Frankfurt, Order of 19 February 2002, 15 W 133/01
ZPO §§ 828, 829, 16 (Unknown moved, jurisdiction)
- If the debtor has moved away unknown, the jurisdiction of the enforcement court is based on the debtor’s last domicile.
- On the question of the burden of proof and the obligations of the creditor.
Hamburg District Court, decision of 29.1.2002, 330 T 7/02
Halle District Court, decision of 7.1.2002, 14 T 382/01
With comment from RB Bernd Schmidt, Schwäbisch Hall
ZPO § 836 paragraph. 3 (Issue of documents)
The debtor is obliged to hand over all documents concerning the attached claim.
This also includes the notice of performance from the employment office.
LG Regensburg, decision of 22.3.2002, 2 T 115/02
ZPO § 850 b (attachment of pocket money)
An attachment of the claim to pocket money to which the debtor is entitled against his spouse is in principle permissible under section 850 b subs. 2 ZPO is admissible if it corresponds to equity. However, this can only be affirmed in exceptional cases. With average and below-average incomes, the attachment of pocket money usually does not correspond to equity.
Mönchengladbach District Court, decision of 11.1.2002, 5 T 326/01
ZPO § 850 f paragraph 2 (tort claim, right of examination of the enforcement court)
At the request of the creditor the requirements of section 850 f subs. 2 ZPO to be determined independently by the court of enforcement if the existence of an intentionally committed unlawful act cannot or cannot clearly be deduced from the judgment and the question was not relevant to the decision in the decision proceedings.
Münster District Court, Order of 6.3.2002, 5 T 137/02
ZPO §§ 850 k, 766; SGB-AT § 55 (social benefits, unseizability, enforcement reminder)
- If the debtor, as the recipient of current social security benefits, has paid them within the protection period of 7
days from his or her account, his or her account is to be credited with the social security
account balances are also not subject to the attachment insofar as these are not subject to
corresponds to the non-garnishable part of the benefit for the period from the garnishment until the next payment date.
- After crediting the beneficiary’s bank account, the debtor must
Release in accordance with § 55 SGB-AT through the collection of the enforcement reminder in accordance with § 766 ZPO
LG Marburg, decision of 18.1.2002, 3 T 79/01
SGB I § 54; EStG § 76 (attachment of child benefit)
If a so-called “counting child”, i.e. a child for whom the debtor himself does not receive child benefit, but who is counted when determining the amount of his child benefit for other children, is legally dependent, the increased amount of the child benefit (the so-called “counting child benefit”) can be seized proportionally. The amount of the increase must therefore be divided by the number of all children taken into account by the debtor.
Mönchengladbach District Court, decision of 30.4.2002, 5 T 30/02
Foreclosure sale and receivership
ZVG §§ 30d, 30e (Amount of interest compensation after cessation of the forced sale)
When the forced sale procedure is discontinued pursuant to § 30e para. 1 ZVG are assigned to the
not to pay the interest in rem but the interest payable under the contract.
LG Stade, decision of 19.3.2002, 7 T 47/02
ZVG § 147; ZPO §§ 261, 265 (power of the forced administrator to conduct proceedings)
- If the debtor is neither the direct nor indirect owner of the condominium and if the third party holding the property refuses to hand it over, forced administration is legally unfeasible with the consequence that the forced administrator lacks the power to conduct the proceedings.
- If proceedings are pending against the debtor in the event of an order of forced administration, section 261 subs. 3 No. 1 ZPO precludes a renewed action by the forced administrator.
LG Dortmund, judgment of 20.12.2001, 4 O 326/01
With note from lawyer Lothar Fundis, Dortmund
ZVG § 152; ZwVerwVO §§ 24, 25 (amount of the remuneration of the forced administrator)
In principle, forced administration justifies the 2-fold standard rate according to § 2 of the German Stock Corporation Act. § Section 25 ZwVerwVO.
This takes account of the increased demands made on the office of forced administrator over the last three decades.
Potsdam District Court, decision of 9 January 2002, 5 T 580/01
LG Stralsund, decision of 1.3.2002, 2 T 251/01
ZwVerwVO §§ 24, 25 (double standard rate as remuneration)
- The rules of § 24 ZwVerwVO are constitutional. In the event of inadequate
In the case of standard remuneration, a percentage increase in the rates or a consideration of the time spent is possible.
- A 100 % increase in the standard fee is justified where the manager is required to initiate legal proceedings against several tenants for payment of rent, to maintain the building and the debtor is not cooperative.
LG Flensburg, decision of 8.3.2002, 5 T 224/01
ZVG § 152; ZwVerwVO §§ 24, 25, 26 (basis of assessment of the amount of remuneration)
The assessment basis for the remuneration of the forced administrator is the so-called target rent, provided that the administrator has made serious efforts to collect the outstanding rental and leasing income.
LG Cottbus, decision of 17.1.2002, 7 T 165/01
InsO § 75 (Convening of the creditors’ meeting)
- The insolvency court shall, after having determined that the creditors’ assembly is entitled to be convened in accordance with section 75 subs. 1 InsO no discretionary power in the
Decide whether to grant the application; no particular legal interest in bringing proceedings in respect of the application must be shown
- If the insolvency court has difficulties in drawing up the agenda for a creditors’ assembly requested by a creditor it shall clarify by asking the requesting creditor which items on the agenda the creditors’ assembly is to deal with.
- When determining the agenda for a creditors’ meeting to be convened at the request of a creditor, the court may not be guided exclusively by the wording of the creditor’s request but must rather also take into account his apparent will.
OLG Celle, Order of 25.3.2002, 2 W 9/02
InsO § 7 Para. 3, § 6 para. 1, § 64 para. 3; ZPO § 104 para. 1 sentence 2, § 284; ZSEG § 16
(basis for calculation of the remuneration)
- The objects encumbered with rights to separate satisfaction shall be disregarded in calculating the basis for the remuneration of a temporary insolvency administrator if he has disposed of the objects.
- No interest is paid on the remuneration entitlement.
PfälzOLG Zweibrücken, decision of 9.4.2002, 3 W 236/01
RPflG § 18 Paragraph 1 No. 1, 2; InsO §§ 289, 291 (RSB announcement, written procedure)
- If the insolvency judge refuses a request by a creditor for refusal of
residual debt discharge, he must also simultaneously announce the discharge of residual debt. The Rechtspfleger does not have a separate responsibility for this.
- On the question of access to file by sending the procedural file to the applicant.
- If the insolvency court orders written proceedings, the final meeting shall not be held.
Objections must then be raised by a date set by the court.
Göttingen District Court, decision of 18.3.2002, 10 T 18/02
InsO §§ 312, 304 (written procedure)
In analogous application of § 312 para. 2 InsO, written proceedings may also be ordered in cases which, due to the new provision in § 304 InsO, are no longer subject to consumer insolvency proceedings but to regular insolvency proceedings (as in the present case with discontinued business operations).
AG Göttingen, decision of 4.3.2002, 74 IN 60/02
Criminal procedural law
BRAGO § 98 para. 3, § 91 no. 2, § 97 paragraph. 2, § 15 para. 1; StGB § 67 e; StPO § 304 (fee in the renewed review procedure)
- The remuneration of the public defender of rights for the activity of the defence counsel in review proceedings pursuant to § 67 e StGB is based on § 91 no. 2, § 97 para. 1 BRAGO and not according to Article 112(1) 2 and 4 BRAGO.
- If the decision of the Penal Enforcement Chamber on the continuation of the accommodation has been reversed by the Appeals Court and the case has been referred back to the court for a new decision, the public defender of rights may, for his activity, be granted a new review procedure pursuant to § 15, Subsection 1, of the Civil Code. 1 sentence 1 BRAGO in turn the fee pursuant to § 91 No. 2, § 97 (1) BRAGO 1 BRAGO. § Section 15, paragraph. 1 sentence 2 BRAGO does not apply.
Düsseldorf Higher Regional Court, Order of 28 February 2002, 4 Ws 65/02
BRAGO § 99 (general attention of the proceedings)
Exceptionally, when a flat-rate allowance is granted, account may be taken of the general level of attention generated by the procedure.
OLG Hamm, order of 4.3.2002, 2 (s) Sbd. 6 — 197 — 201/01
BRAGO §§ 83, 84, 105 (scale of charges in the case of traffic violations)
In the case of average traffic regulation offences, the charges are to be taken from the lower third of the charging framework of §§ 83, 84, 105 BRAGO
Göttingen District Court, decision of 12.3.2002, 1 Qs (Owi) 13/02
Right of cost
ZPO § 91 paragraph. 2 Sentence 1; BRAGO §§ 52, 53 (Attorney travel expenses in the case of a supra-local partnership)
Legal travel expenses of a foreign member of a supra-local law firm to a court where lawyers of this firm are also resident are not reimbursable.
Munich Higher Regional Court, Order of 8 March 2002, 11 W 927/02
ZPO § 91 (Reimbursability of detective costs)
- Investigation costs incurred in establishing the address of the defendant in the case are reimbursable if the plaintiff had no other successful means at his disposal.
- Expenses incurred in determining the possibility of enforcement cannot be determined as costs of litigation by the trial court.
OLG Koblenz, decision of 1.3.2002, 14 W 123/02
ZPO § 91 (costs of a private expert opinion)
In the determination of costs in the divorce settlement, costs of extrajudicial
The value of real estate can in any case be determined by a private expert opinion commissioned by the parties if the parties agree on the gain.
Nuremberg Higher Regional Court, Order of 17 April 2002, 10 WF 1138/02
ZPO § 91; BRAGO § 53 (costs of a sub-authorised representative after dunning proceedings)
If the plaintiff, after an unforeseeable objection to an order for payment, is
formerly Mahnanwalt, acting as Agent, and a subagent
the additional costs incurred by the subagent shall be reimbursed if the participation of the lawyer at the court hearing would have been the cheapest option, but the additional costs incurred by the subagent are only slightly higher. This applies all the more so if, after weighing up the possible cost savings and the time required, it was not reasonable for the attorney of record to travel to the trial court.
Munich Higher Regional Court, Order of 12 April 2002, 11 W 2837/01
ZPO § 91 (Reimbursability of the costs of a private expert opinion within the proceedings)
If a party in a traffic accident liability case is found to be in breach of the expertly substantiated
the Commission was confronted with the incorrect allegation that its evidence on the extent of the damage
fraudulently manipulated because the vehicle had had previous damage, she may use a private expert if this is the only way she can substantiate the suspicion.
OLG Koblenz, decision of 7 May 2002, 14 W 250/02
BRAGO Section 6(6) 1 sentence 2 (increase of the litigation fee if several lawyers are used as partners in the partnership under the German Civil Code)
If several lawyers are called upon as BGB partners, the
Process fee. The fee incurred is not called into question by the fact that the
trial court without corresponding statements by the parties on the basis of the decision of the Federal Court of Justice of 29 January 2001 (NJW 2001,1056 = Rpfleger 2001,241) assumes that instead of
The BGB company had been sued as a shareholder.
OLG Koblenz, decision of 9 April 2002, 14 W 183/02
BRAGO Section 43(1) 1 No. 2, § 31 para. 1 No. 1, § 32 para. 1; ZPO §§ 91, 104, 269, 304 para. 1, 696 paragraph. 3, 4 (Appeal against the order for payment and claim for dismissal)
- A partial decision is also inadmissible in the procedure for fixing costs if a
contradictory final decision cannot be ruled out (here: disregarded interest application).
- If the defendant’s attorney combines the opposition to the order for payment with an application to dismiss the action, the procedural fee of Section 31(1) may be charged. 1 No. 1 BRAGO arise as soon as the case is handed over to the court of litigation.
- If the plaintiff subsequently fails to submit a statement of claim and withdraws the action instead, only a 5/10 fee pursuant to § 32 para. 1 BRAGO from the principal and a 10/10 fee under Article 31(1) 1 No 1 BRAGO from the cost value reimbursable
OLG Koblenz, decision of 20.3.2002, 14 W 187/02
FGG § 5; KostO § 14 Abs. 2 (template for determining jurisdiction)
- The Rechtspfleger is only authorised to bring about a decision under Paragraph 5 of the FGG if the main issue is a matter assigned to the Rechtspfleger.
- The decision on a reminder against the assessment of costs pursuant to § 14 (1) 2 KostO is assigned to the Rechtspfleger only insofar as he is responsible for the chargeable transaction.
BayObLG, decision of 19 April 2002, 3 Z AR 16/02
KostO § 14 Abs. 3, § 17 (interest on the claim for restitution)
- A decision on a claim for interest on overpaid fees for entries in the Commercial Register is to be made in proceedings in accordance with the cost regulations.
- Regarding the conditions for enrichment interest in accordance with section 818 (1). 1 BGB in
Framework of a public law claim for reimbursement (here: interest on overpaid commercial register fees).
OLG Dresden, Order of 14 March 2002, 15 W 409/01
Legislative Report Reporting period 26.5.2002 — 25.6.2002
Act on the transfer of judicial officer duties to the registrar of the registry office of 16 June 2002, BGBl. I 2002 p. 1810 Notice concerning § 115 of the Code of Civil Procedure (Legal Aid Notice 2002 — PKHB 2002) of 13 June 2002, BGBl. I 2002 P. 1908
Publication of the revised version of the Convention of 4 November 1950 for the Protection of
Human rights and fundamental freedoms of 17 May 2002, BGBl. II 2002 p. 1054 Announcement on the scope of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 12 April 2002 <Application to Ukraine and Belarus>, BGBl. II 2002 P. 1161
Law amending the law on public savings banks in the country
Bremen and the law on the implementation of the Code of Civil Procedure, the Insolvency Code
and the Compulsory Auction of Immovable Property Act of 28 May 2002, GVBl. 2002 S. 131
Ordinance on court decisions in matters relating to the acquisition and takeover of securities (Securities Acquisition and Takeover Matters — Concentration Ordinance — § 66 WpÜG) of 15 April 2002, GVBl. 2002 S. 123
Regulation on Jurisdiction for Decisions in Company Law
matters and in matters of mutual insurance companies
(Concentration Regulation Company Law) of 16 April 2002, GVBl. 2002 S. 123
Thuringian Regulation on the Enforcement Plan of 14 November 2001, GVBl. 2002 S.
197 Code of 2. 5. 2002, GVBl. 2002 S. 255
Real estate and land register law
Böttcher, Any cancellable receipt issued by the manager of a condominium owners’ association, RpflStud. 2002,94
Grauel, Preemption rights under state law, RNotZ 2002,210
Lehmann, Ready for adoption: The ranking capacity of the property reservation, NotBZ
Schmidt-Troschke, Duty of certification and approval requirements according to § 1365 BGB for
Cancellation or subsequent amendment of property purchase agreements, NotBZ 2002,157
specks, healing of form defects according to § 311b Abs. 1 sentence 2 BGB (§ 313 sentence 2 old version) and §
Article 15, paragraph. 4 p. 2 GmbHG, RNotZ 2002,193
Family and guardianship law
Bißmaier, The advance on legal costs in family court practice, FamRZ 2002,863
Graba, For additional needs due to separation, FamRZ 2002, 857
Heinke, Consideration of the tax burden in the assessment of maintenance-relevant needs and income (Part 2), ZFE 2002,174
Janzen, The Children’s Rights Improvement Act — Further Development of the Law of Parenthood
and protection of children against violence, FamRZ 2002,785
Kaiser, “Entpartnerung” — Cancellation of the registered civil partnership of same-sex partners, FamRZ 2002,866
Oelkers/Kraeft, Rehabilitation and participation of disabled people — effects on
Maintenance law, FamRZ 2002, 790
Reinecke, Maintenance of adults and parents, ZAP Fach 11 p. 647
Viefhues/Kleinwegener, On the minimum needs of a dependent child, ZFE
Law of succession and estate
Haas, The German testator with foreign assets — Overview of the applicable
Law –, ZNotP 2002,206
Klüsener/Walter, The Interpretation Practice in the Disposition of Death, ZFE 2002,182
Mayer, The Execution of Wills on GmbH Shares, ZEV 2002,209
Commercial and registration law
Brauer/Leveda, The merger of a pledged GmbH share with a
pledge-free GmbH business share without the consent of the pledgee, GmbHR 2002,572
Erdmann, Foreign nationals in management and executive boards of German
GmbHs and AGS, NZG 2002.503
Civil proceedings and enforcement
Bacher, Receipt of e-mails at court, MDR 2002,669
Baroness von König, The reform of the procedure for service in judicial proceedings,
Deimann, The forgotten legal succession clause and its unpleasant consequences, RpflStud.
Falkenkötter, ZPO reform: New § 108 ZPO and old titles, MDR 2002,622
Fischer, Legal protection in the event of account seizures in the light of current case law, InVo
Haertlein, State liability due to execution on third-party property, DGVZ
Jungbauer, The enforcement clause — Appeals and remedies under
ZPO Reform, JurBureau 2002,285
Katzenmeier, obligation of the party not burdened with evidence to inform/cooperate, JZ 2002,533
Kraemer, The civil law partnership as a party to commercial rental agreements, NZM
Limberger, The compulsory security mortgage and the arrest mortgage in
Foreclosure proceedings, RpflStud. 2002,63
Lipp, Complaints of “tangible unlawfulness” after the 2002 reform of the ZPO , NJW
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Piekenbrock, ZPO-Reform — New regulation of the Anschlussberufung, MDR 2002,675
Rieke, Applications for the issue of an arrest warrant in the EV procedure by debt collectors?,
Rumme, ZPO reform: Appeals in valuation procedures, MDR 2002,623
Schneider, The new ZPO from the perspective of the legislator, ZAP Fach 13 p. 1147
Breutigam/Kahlert, Determination of claims in the planning procedure — a never-ending story?,
Interest rate 2002,469
Fröhlich/Köchling, Intangible assets in insolvency proceedings, ZInsO 2002,478
Fuchs, The changes in the residual debt discharge procedure — problem solution or new
Questions?, NZI 2002,298
Gaiser, The debtor’s obligations to provide information and cooperation pursuant to § Section 97 InsO and the
Question about alternative sources of information, ZInsO 2002,473
number of mice, The unlawful act in the insolvency of the natural person, ZInsO 2002,462
Niesert/Kairies, separation and segregation of Internet domains in insolvency, ZInsO
Pannen/Riedemann/Kühnle, On the position of creditors of the insolvency proceedings under the European
Regulation on Insolvency Proceedings (EuInsVO), NZI 2002,303
Pape, Consequences of the current case law of the Federal Court of Justice for the treatment of
Contaminations in insolvency proceedings, ZInsO 2002,453
Vosberg, The guarantee insurance in the insolvency of the entrepreneur, ZIP 2002,968
Criminal law and criminal procedure
Kunkel, duty of disclosure and information, right to refuse to give evidence and data protection in
Offences against children, StV 2002,333
Paeffgen, § 129a StGB and the procedural concept of crime, NStZ 2002,281
Tsambikakes, The new right to refuse to testify for media employees, StraFo 2002,145
Zähres, issue of a penalty order according to § Section 408a StPO in the pursuant to § Section 408 III 2 StPO
scheduled trial, NStZ 2002, 296
Right of cost
Enders, The place of jurisdiction far from the domicile of the party — Part I –, JurBüro 2002,281
Hansens/Schneider, Change in fees in criminal and social cases by the
FOOD DISH, ZAP compartment 24 p. 685
Real estate law. Published by Prof. Dr. Klaus Schreiber, Ruhr University Bochum.
- Erich Schmidt Publishing House, Berlin. 1279 pages. 188,– E
Professor Roland Böttcher, Berlin
The remuneration of the guardian: A guide also for guardians and carers to the
Remuneration and expense regulations. From Dipl.-Sozialarbeiter/Dipl.-Verwaltungswirt (FH)
Horst Deinert and lawyer Kay Lütgens. 3rd ed., Federal Gazette Publisher Cologne, 2002.
342 p., 30,– Euro
Dipl.-Rpfl. Horst Bestelmeyer, Starnberg/Gauting
Palandt: Law for the Modernization of the Law of Obligations. Supplementary volume to Palandt, BGB, 61.
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edition. Edited by VRiLG retired Dr. Peter Bassenge, RiOLG Dr. Gerd Brudermüller, Prof.
Dr. Uwe Diederichsen, PräsAG Wolfgang Edenhofer, Prof. Dr. Helmut Heinrichs, Prof. Dr.
Andreas Heldrich, Prof. Dr. Hans Putzo, VRiBayObLG Hartwig Sprau, Prof. Dr. Heinz Thomas
and Walter Weidenkaff. Publisher C. H. Beck, Munich, 2002. XXIX, p. 449, Ln. 25,– E
Prof. Udo Hintzen, Sankt Augustin/Berlin
Heidelberg Commentary on the Law on Private Limited Companies. By Prof. Dr. Harald Bartl, Dr. Helmar
Fichtelmann, Ltd. RD i.R., Prof. Dr. Eberhard Schlarb, tax consultant, and Hans Jürgen
Schulze, retired judge at the local court 5th, revised edition 2002. C. F. Müller, Hüthig
Specialist publishers, Heidelberg. XXIV, 1140 S., 106,– E
Notary Dr. H. Schmidt, Viersen
Handbook for the community of heirs: tax law. From RA and notary, specialist lawyer for
Tax law Dr. Jürgen Ebeling and RA and notary, StB Dr. Reinhard Geck with the collaboration of
RegDir a. D. Günter Grune and judge at the FG Jörg Grune. Publisher Dr. Otto Schmidt KG, Cologne.
Loose-leaf collection, basic work. 6th edition, 1,806 pages. Price: 126,80 E. Last
published 32nd supplement (as of June 2001), 504 pages. 91,73 E
Dipl.-Rpfl. Ulrich Gerken, RA, FAStR, Hamburg
Code of Civil Procedure. Published by Prof. Dr. Hans-Joachim Musielak. Third edition, 2002.
Publisher C. H. Beck/Franz Vahlen, Munich. XLX, 2657 pages, linen, 150,– E
Prof. Udo Hintzen, Sankt Augustin/Berlin
Insolvency Creditors’ Handbook. By Dr. Martin Gogger. Publisher C. H. Beck, Munich, 2002.
XXIV, 333 pages, Ln. 50,– e
Prof. Dr. Heribert Hirte, LL.M. (Berkeley), Hamburg
Settlement of costs in civil and family matters and legal aid. From Dipl.-Rpfl\9in
Helga Hünnekens, lecturer at the FHS for the administration of justice NRW. 3. overarb. Edition, 2002. To
can be obtained via the University of Applied Sciences for Administration of Justice NRW, Bad Münstereifel. 417 pages,
kart., 22,– e (reduced price for students v. 18,– e)
Legal Officer Gerhard Timmer, Kleve
The dunning procedure. By Dipl.-Rpfl. Ralf H. Selbmann, Stuttgart, 2nd edition 2002. Rudolf
Haufe Verlag GmbH & Co KG Freiburg, Berlin. 406 pages, born, 78.00 E
Dipl.-Rpfl. (FH) Andreas Stich, Germering
By Dr. Johannes Fiala, Andreas K. Müller and Dipl.-Soz.-Pedagogue Christoph Braun
published in Rechtspfleger, issue 08+09.2002, page 389 ff
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About the author
PhD, 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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