5.8.4 Provisional termination of compulsory enforcement
If a provisionally enforceable judgment is appealed, upon a corresponding request by the debtor and appellant, the court may direct a temporary suspension of the enforcement, either against or without provision of security (Sections 719 and 707 of the Code of Civil Procedure). Possible reasons for a suspension, inter alia, are that:
- based on a summary examination, it must be assumed that the appealed judgment will not be upheld (obvious incorrectness); or
- according to prima facie evidence,180 the debtor may suffer extraordinary, irreparable damages (exceptional disadvantages); or
- a crucial aspect that raises difficult legal questions was left unexamined in the appealed judgment.
Obvious incorrectness may, for example, be assumed if the legal assessment with regard to infringement, right to sue or the capacity to be sued was evidently erroneous. In addition, the (partial) revocation of the patent-in-suit subsequent to the pronouncement of the appealed judgment can justify the provisional suspension of enforcement.181 Exceptional disadvantages, in particular, include the sufficiently likely possibility that the economic existence of the debtor is threatened by the enforcement. Given that – a fortiori, if a security has already been submitted by the enforcing party – the provisional termination of enforcement is the exception to the rule, and due to the fact that the judgment will be examined in the course of the appeals proceedings anyway, the chances of a suspension are generally rather low in practice.
The decision on the question of provisional termination is delivered by court order and is incontestable (Section 707(2)).