Enforcement (tvangsfuldbyrdelse) enables a creditor to take coercive measures to ensure that a debtor honours a claim established by a court or in some other way. Enforcement cases are dealt with by the bailiff's court (fogedretten), (a division within the district court (byretten)), in accordance with the rules laid down in the Administration of Justice Act. Most enforcement cases relate to demands for payment. However, other types of demand can be enforced, such as a demand for a person to cease tenancy on expiry of a lease.
A demand for money is usually enforced by the bailiff's court seizing the debtor's assets. Seizure involves the creditor being given a right of lien over the asset concerned, so that he can sell it by force, thus covering his claim wholly or in part from the proceeds of a public sale. If enforcement relates to a demand to vacate a building, enforcement involves eviction by the bailiff's court, possibly with the help of the police.
Decisions on custody, children's place of residence and access to children can also be enforced. Enforcement in such cases can take the form of default fines and the direct use of force with police back-up.
For enforcement to take place, there must be grounds or a basis for enforcement.
The following can constitute grounds for enforcement:
Enforcement is carried out by the bailiff's court. This means that a claimant whose claim is well-founded can submit an application for enforcement to the bailiff's court. The application is usually submitted in the jurisdiction where the debtor lives.
The bailiff's court then carries out an initial examination of the case. If it is deemed to be well-founded the parties involved are summoned to a meeting which usually takes place in the office of the bailiff's court. It can, however, also be held on other premises, such as the debtor's place of residence or business.
The claimant is, in principle, obliged to attend the meeting, and the case is rejected if he does not appear. The debtor can be obliged to attend the meeting; if a summons is served on him but he fails to appear, he can be brought before the court by the police.
In the course of the meeting the debtor is asked to make payment and he is obliged to provide whatever financial information about himself and his household may be required by the bailiff's court. Failure to provide proper information is a punishable offence. The purpose of questioning the debtor is to find out whether he owns assets that can be seized (for further details see point 3.1 below).
As a general rule, a court fee is payable for seizure when the request is made. The basic charge for seizure is DKK 300, and if the claim exceeds DKK 3000 a further 0,5% of the remainder is required. If there are proceedings outside the courthouse, or the debtor has to be brought before the court by the police, a further charge of DKK 400 is required.
In certain cases the bailiff's court can decide not to grant the claimant's request for enforcement. If the debtor raises objections to the grounds for enforcement, and if in the light of the evidence which may be placed before it the court judges that it would be inadvisable to proceed, then the court must refuse to proceed further.
The bailiff's court cannot take a decision on all objections to validity raised against the grounds for enforcement. It cannot, for example, take a decision on objections concerning the correctness of judgments and decisions; and it can refuse to hear which, given its scope or nature, or for some other particular reason, should be given in ordinary proceedings.
The debtor has some scope for pursuing a counterclaim during enforcement. The counterclaim can then be offset - assuming that the general conditions required for this are met – in the course of the enforcement action, provided it is enforceable, or is recognised by the party that has applied for seizure, or is accepted as being justified on some other ground.
In principle, anything belonging to the debtor which has an economic value can be seized. Both immovable and movable property can be seized. Movable property includes not only physical assets (such as cars, ships or aircraft), but also legal claims, for example.
There are, however, a range of assets which cannot be seized to cover private claims. Some of the main examples are as follows:
Once the debtor's assets have been seized, he no longer has the full right of disposal of the seized assets. The debtor is not entitled to dispose of the seized assets in any way that could be detrimental to the creditor with rights over the seized property; for instance, he cannot sell or transfer the assets to a third party. As a general rule, movable property which has been seized remains in the debtor's possession until such time as a public sale is held, unless the bailiff's court decides that the debtor is to be deprived of the right to dispose of his property.
If the debtor disposes of seized assets unlawfully, a penalty may be imposed.
If more than one creditor applies for seizure of the same assets, priority is established according to the order in which the requests were submitted to the bailiff's court.
Debtors are obliged to provide such information as is required by the bailiff's court in order to be able to carry out enforcement. Should a debtor fail to meet his obligation to provide information, the bailiff's court can decide that he is to be given a custodial sentence of up to six months until such time as he fulfils his duty to supply information.
Seizure of movable property (apart from motor vehicles, registered vessels and aircraft) generally lapses after one year, unless the creditor with rights over the seized property has previously submitted a request to the bailiff's court for the assets concerned to be sold at a public sale. This period is calculated from the time at which the assets are seized.
Seizure of immovable property, motor vehicles, registered vessels and aircraft lapses after ten years (but until 1 January 2008 after 20 years).
It is, as a general principle, possible to lodge an appeal before the high court (landsretten) against decisions taken by the bailiff's court. The appeal must be lodged within four weeks of the decisions being issued by the bailiff's court. However, appeals against decisions to seize assets with an economic value of a maximum of DKK 10 000 can be lodged only with the permission of the Leave of Appeal Commission (Procesbevillingsnævnet), if there are particular grounds for such an appeal.
Moreover, cases on which the bailiff's court has ruled can be revised, that is to say subjected to a fresh examination by the bailiff's court. They can be revised if the parties to the case so agree or if the bailiff's court deems revision necessary. Revision may be necessary, for instance, be necessary if the debtor or a third party provides evidence that the ruling infringes the rights of a third party or if the debtor was not present during the enforcement action and is now invoking the rules on the debt enforcement code enshrined in the Administration of Justice Act.Top
Last update: 27-03-2009