The fact that Rürup pension insurance is sold with the argument “safe from seizure and in the event of insolvency” is also found thousands of times on the Internet – a serious error for those affected, as the Munich lawyer Johannes Fiala and the actuary Peter A. Schramm explain.
Here in the following their remarks:
In its judgement of 8 October 1997, the Regional Court (LG) of Braunschweig had already decided that, in contrast to employees and civil servants, “freelancers, non-professionals and tradesmen” with their “insurance pensions for subsistence in old age” are not legally protected against seizure. This was confirmed by the Federal Court of Justice (BGH) in its ruling of 15 November 2007 (Ref. IX ZB 99/05): Attachment protection in the case of private insurance pensions (e.g. pension, accident and occupational disability pensions) thus only for civil servants and employees, but not for freelancers, tradesmen and self-employed persons. In the opinion of the BGH, this group is in principle not entitled to any attachment protection because it has no earned income within the meaning of the attachment protection provisions (§§ 850 ff. ZPO). Insurance customers who fell into this trap are entitled to rescission and damages, including lost investment income. Starting points are marketing liability and misinformation. An insurance agent rarely has to inform about “non-insurance alternatives” (OLG Hamm, judgement of 1.8.2007, Az. 20 U 259/06).
Garnishment-free small pension
In 2007, the legislator introduced a garnishment-free “small pension” through § 851c of the German Code of Civil Procedure (ZPO), in particular in the case of pure pension insurance without a lump-sum option. Neither may disposals be possible, nor – except in the event of death – may a capital payment be agreed. A subscription right may only be provided for relatives. The debtor can currently be held from the 18th to the 29th year of life 2,000 euros, from the 30. until 39 years of age 4,000 euros, from the 40. until 47 years of age 4,500 euros, from the 48. until 53 years of age 6,000 euros, from the 54. until 59 years of age 8,000 euros and from the 60 to 65 years of age can save 9,000 euros per year “protected”.
However, the seizure-free surrender value may not currently exceed 238,000 euros. Theoretically, this can be used to save for old age at the level of a subsistence level – but depending on the quality of the product, it can also be used to save only half that amount (800 to 1,600 euros per month). The new § 851d ZPO protects only current disbursements, and this only within the scope of the usual garnishment-free amounts (with single persons scarcely 990 euro monthly, like earned income), not however unique capital disbursements (with Riester up to 30 per cent) or the compensation of small amount pensions (in the future also with divorce possible). Originally, the legislator also wanted to protect the Rürup pension (Bundestag printed paper 16/886, page 11).
Now, however, it appears that the “value according to the old-age pension allowance pursuant to § 12 II no. 3 SGB II” can be withdrawn from the notice by a pledgee or insolvency administrator at most by waiving the premature notice pursuant to § 165 III 1 VVG-a.F.. However, the statutory right of termination cannot be completely excluded under the BGB. In “emergency situations”, for example, it must be maintained, even after retirement. There is no doubt that such an emergency situation exists in the case of insolvency or bankruptcy – and thus the right of termination existing on the basis of higher-ranking law can also be exercised by the insolvency administrator or creditor.
The insurer must then pay out a surrender value or current value. Any contractual provisions to the contrary are then no longer relevant. Alternatives for tradesmen, freelancers and non-professionals: insolvency proceedings lasting only one to two years through residence abroad. Although pension provision through assets abroad can be an option, there are again pitfalls. This is because the alleged “life insurance with bankruptcy privilege”, sold by a German intermediary or a domestic bank, will always fall under German law – and this German law does not know any “bankruptcy privilege”.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.performance-online.de (Published in Performance, issue 6.2008, page 14)
and
www.dzw.de (published in Die Zahnarzt Woche, issue 42/2008, pages 30 + 31 under the headline: Life insurance policies are attachable, not insolvency-proof).
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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