Insurer associations, insurers and the insurance selling praise in advertising brochures for many years the Rürup pension as seizing-protected age precaution. Now this proves as bare marketing lie for the Kundenakquise – that is the opinion of Dr. Johannes Fiala and Dipl.- Math. Peter A. Schramm.
The Rürup pension (the so-called seizure-protected old-age provision for self-employed persons) requires a contractual prohibition of assignment and transfer. Insurers and distributors never tired of concluding that this ban was unseizable. But now the Federal Minister of Finance (File No. IV C 3 – S 2222/09/10041) has clarified: “The attachment of pension assets is not precluded by a contractual prohibition of assignment and transfer.”
Accordingly, the Federal Court of Justice had already ruled (decision IX a ZB 271/03) that even a provision on non-transferability in the articles of association of a pension scheme does not prevent seizure. The property right of creditors may constitutionally only find a limit where the welfare state principle is affected. A creditor’s claim enjoys the protection of the Basic Law as property – it may not be withdrawn from him so easily by contractual prohibitions on transfer. The “Rürup lie” of the insurers was justified by the fact that an exploitation exclusion would be contractually agreed and the transferability would be excluded.
But such contractual exclusions do not save from garnishment because constitutional creditor protection (the state may only protect the social minimum from creditors) takes precedence. The tax office is also reluctant to see how the self-employed person creates a generous pension for himself and owes his taxes. The Rürup saver also saves for the state (because of the saving of later support) and incidentally for his creditors. Courts will, according to the ZPO, only leave the subsistence level, to relieve the social welfare office, free of garnishment, because the debtor should not be able to get out of debt at the expense of the general public. The garnishment-free limits in the savings phase – and later after the start of the pension – are set in the law at a correspondingly low level.
These are nowhere near the maximum limits up to which Rürup contributions can be taken into account on a pro rata basis as special expenses, so that a large part of the Rürup assets saved can still be seized. Since the legislator expressly provides for the seizure of saved capital above the exemption limits, one has to admire the courage of insurers who think they are smarter than the legislator and simply deny this possibility. Yet to this day, they have not been able to produce a single judgement that confirms their fairy tale of the Rürup Treaty being exempt from seizure. Nor does the clear legal situation prevent the Rürup saver from being entitled to payment of a surrender value upon ordinary termination.
For it simply follows directly from the law on the seizure-protected old-age provision of self-employed persons (§ 851c ZPO) that the saved Rürup capital can be seized before the start of retirement above the limits set by social assistance. Insolvency administrators, tax authorities and other creditors will know how to enforce these claims, which are clearly left to them by law, against the insurers as well – the Rürup saver is left with only a pension at the social welfare level. It is also not true according to § 169 VVG that there would be no surrender value at all for the Rürup pension. Rather, it is always calculated from the accumulated actuarial reserve.
It is only not payable in the event of ordinary termination because no death benefit has been agreed at the time of termination. Nevertheless, it is present in the accumulation period because it is used to determine the non-contributory pension as “premium-free insurance”. However, the surrender value must actually be paid out in the event of withdrawal or rescission, as well as in the event of extraordinary termination in accordance with § 314 BGB and also in the event of seizure. However, there are corresponding regulations abroad, such as in Liechtenstein and Switzerland, for assets for pension provision protected against seizure in any amount. Corresponding insurers take advantage of this in their advertising by soliciting customers in Germany with “insurance secrecy and bankruptcy protection”.
On closer examination, this also turns out to be a sales lie in 99.9 percent of cases, because according to private international law and state international treaties, this alleged bankruptcy protection advertised as a “princely privilege” cannot intervene at all. However, there are ways – without tax fraud – to protect one’s own assets, for example through foundations. However, these are not off-the-shelf products, as some Swiss banks have offered their clients for the purpose of aiding and abetting money laundering.
by Dr. Johannes Fiala and Dipl.- Math. Peter A. Schramm
by courtesy of
www.waffenmarkt-intern.de (published in Waffenmarkt Intern, 06/2010)
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About the author
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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