General court system (Austria)

First page of the book from an edition of the AGO 1781. Image from the holdings of the Vorarlberg State Library .

The General Court Rules (AGO, also: Josephinische Rechtsordnung nach Joseph II. ) Regulated the judicial procedure in civil disputes in Austria for over 100 years and thus represents the central procedural code for judicial disputes.

The civil proceedings in the AGO were basically in writing, not public and were based on the principle of contingency and the bound assessment of evidence. The parties were the "masters" of the proceedings and were largely responsible for its progress.

history

In 1753 Maria Theresia made the decision that "all of her hereditary lands should have the same rights and a uniform type of legal procedure" and set up a compilation commission that met in Brno , which was dissolved in 1756 and its work was taken over by a Viennese commission has been. The created Codex Theresianus should contain the civil procedure law for contentious and non-contentious cases in the fourth part in two sections. On the advice of Wenzel Anton von Kaunitz-Rietberg, Maria Theresa did not approve the Codex Theresianus and returned the draft to the commission in 1772. The Codex Theresianus remained a mere draft law and never achieved legal validity . However, in the following drafts, the law of civil procedure was separated from the substantive law of order of Maria Theresa, which led to an acceleration of the codification work. The work was directed by Hofrat Holger until January 1774 under the chairmanship of the compilation commission by Count Sinzendorf.

In February 1774, the Froidevó Government Councilor was appointed as the new advisor for the drafting of the Code of Civil Procedure, and on September 5, 1775 a completed draft was submitted for approval. With the resolution of December 19, 1775, Joseph II instructed the Compilation Commission to pinpoint the problematic cases relating to the emerging substantive law (later ABGB ). The completed draft was then sent to five Florentine lawyers for expert opinions and on April 21, 1779 to the Supreme Judicial Office for examination. In 53 meetings from June 9, 1779 to June 16, 1780, the design was further refined.

The AGO was replaced with the entry into force of the Austrian Code of Civil Procedure (ZPO) on January 1, 1898.

Scope of the AGO

The General Court order dated 5 January 1781 ( JGS 1781/13) was in Böheim , Moravia , Silesia , Austria whether , and under the Ennß , Steyer market , Carinthia , Krain , Gorizia , Gradiska , Trieste , Tyrol , and for Vorlande and Liechtenstein . The AGO was the first comprehensive codification of civil procedural law in the Habsburg monarchy.

In addition to the AGO and with the same scope of application, a tax code (court fee code) for civil proceedings was issued on November 1, 1781, which came into force on May 1, 1782. This court fee regulation was issued in accordance with the preamble in order to guarantee a uniform procedure throughout Austria and not to make access to court more difficult.

Language question

The use of languages other than German in dealings with the authorities and courts in Bohemia, Moravia, Silesia, Carinthia, Carniola, Gorizia, Gradiska, Trieste etc. was a major point of contention for many decades and was one of the many reasons why the Habsburg Monarchy disintegrated. So certain z. B. already the renewed Bohemian state order Ferdinand III. from 1640 in judicial criminal cases the language of the defendant as the language of negotiation. The Court of Justice decree of April 22, 1803, line 1192, reminded the Prague Court of Appeal that according to the general court rules of May 1, 1781, every plaintiff is free to draft his complaint in German or Bohemian. The Justice Ministerial Decree of April 29, 1848, line 121, to the Bohemian Court of Appeal fixes the complete equality of the Bohemian and German national languages in the administration of justice. The Justice Ministerial Decree of May 23, 1852, line 11.815, already lays down the principles of the Stremayr-Taaffe Language Ordinance (§ 8) in criminal proceedings .

West Galician judicial system

Book page from an edition of the West Galician court order from 1817. Image taken from the holdings of the Vorarlberg State Library .

An expanded and improved version of the AGO was introduced "on a trial basis" as the "General Court Code for Western Galicia" (also: Western Galician Court Code) in Western Galicia in 1796. This version was, however, compared to the final version of AGO 1781, around 40% more extensive and also more comprehensive in terms of content (619 paragraphs in 43 chapters). See z. B. the possibility of the Kontumaz decision in § 29 AGO or § 29 West Galician court order.

The West Galician court order was also introduced there in 1815/1816, when Tyrol, Vorarlberg, Salzburg and other areas came back to Austria after the defeat of Napoleon Bonaparte , while the AGO continued to apply in the other crown lands .

content

The AGO comprises 437 paragraphs in 39 chapters. The main part of the basic provisions of the AGO was taken from the previously existing Bohemian procedural law and not from the Austrian. In particular, the following legal institutions from Bohemian procedural law have been incorporated into the AGO:

the predominant written procedure,
the closed number of possible pieces of evidence and
the formal evidential value of the same,
the exclusion of circumstantial evidence .

It is noticeable that the evidence and the evidence procedure including the oath was regulated quite extensively in 11 chapters (Chapters 11 to 22) and 133 paragraphs (over 30% of the total scope of the AGO). Chapter 14 is also the second largest individual chapter in the AGO with 39 paragraphs. The largest single chapter is the execution procedure with 54 paragraphs (today regulated in a separate execution order). The third largest individual chapter with 26 paragraphs formed the bankruptcy regulations (today regulated in the bankruptcy code).

Structure of the AGO

First chapter. From the judicial procedure in general (§§ 1 - 16)
Chapter two. From the oral procedure (§§ 17 - 33)
Third chapter. From the written procedure (§§ 34 - 57)
Quarter chapter. Of representations (§§ 58 - 61)
Fifth chapter. From the counterclaim (Section 62)
Sixth chapter. Of the authorization to sue and to defend oneself (§§ 63 - 65)
Seventh chapter. From the actual request process. (Provocatio ex lege diffamari.) (Sections 66 - 71)
Eighth chapter. Of the request for a building to be carried out (§ 72)
Chapter ninth. From the bankruptcy proceedings (§§ 73 - 99)
Chapter ten. From the invoice process (§§ 100 - 103)
Eleventh chapter. From the evidence (§§ 104-106)
Chapter Twelve. From the evidence by admission (§§ 107-110)
Chapter thirteenth. From the evidence by letter documents (§§ 111 - 135)
Chapter fourteenth. Of the proper evidence by witnesses (§§ 136-175)
Chapter fifteen. From evidence to eternal memory (§§ 176 - 181)
Sixteenth Chapter. From the summary evidence by witnesses (Sections 182-186)
Chapter Seventeen. From the evidence by art experts (§§ 187-202)
Chapter eighteenth. From the evidence by the main oath (§§ 203-211)
Chapter Nineteenth. From the fulfillment and denial oath (§§ 212 - 213)
Chapter twentieth. From the assessment silk (§§ 214-218)
Chapter one and twentieth. From the affidavit (§§ 219 - 220)
Two and Twentieth Chapters. Of the oaths in general (§§ 221-237)
Chapter three and twentieth. Of the corruption of files (§§ 238-246)
Chapter Four and Twenty. Of the judgments (§§ 247-251)
Chapter Five and Twenty. From the appeal, and revision, then the nullity action (§§ 252 - 267)
Chapter Six and Twenty. From temptation to goodness (§§ 268-269)
Seventh and Twentieth Chapter. By arbitrators (§§ 270-274)
Chapter eight and twentieth. From the arrest (§§ 275 - 282)
Chapter nine and twentieth. From the prohibition on moving goods (§§ 283 - 291)
Chapter thirtieth. Of sequestrations and other temporary arrangements (§§ 292 - 297)
Chapter one and thirtieth. From the execution (§§ 298 - 352)
Chapter two and thirtieth. Of standstills and the treatment of creditors (§§ 353 - 361)
Third and thirtieth chapter. From assignment of goods (§§ 362 - 370)
Fourth and thirtieth chapter. From the establishment in the previous state (§§ 371 - 375)
Chapter five and thirtieth. From the holidays (376 - 383)
Sixth and thirtieth chapter. From the delivery of judicial ordinances (§§ 384 - 397)
Chapter seven and thirtieth. Of court injustices (§§ 398 - 409)
Eight and thirtieth chapter. From the lawyers (§§ 410-429)
Ninth and thirtieth chapter. From the judge (§§ 430-437)

literature

Georg von Scheidlein (1747–1826) wrote an important commentary on the AGO in 1806 ( Explanations on the general civil court order , 2 volumes, Vienna 1806).
Carl Chorinský (1838–1897) with: The Austrian Executiv-Process: a contribution to the history of the general court system in 1879, a historical basis and at the same time a swan song for the AGO.

Web links

Commons : General Court Rules - collection of pictures, videos and audio files

Individual evidence

↑ According to Carl Chorinský in The Austrian Executiv Process: A Contribution to the History of the General Court Order , Vienna 1879, Holder, p. 107 ff., The question of the predominantly written or oral proceedings before the court was discussed very emotionally and for many years, and finally decided in favor of the predominantly written procedure.

↑ Petr Lavický, Eva Dobrovolná in The Czech Civil Procedure Law , in the Journal of European Law, International Private Law and Comparative Law , April 2016, 02, p. 89.

↑ This is expressly pointed out again in Joseph II's “ Preface ” to the final printed legal text.

↑ Carl Chorinský in The Austrian Executiv Trial: A Contribution to the History of the General Court Order , Vienna 1879, Hölder, p. 98.

↑ Handbillet from January 27, 1772 with the order for the independent preparation of the civil procedure law.

↑ Carl Chorinský in The Austrian Executiv Trial: A Contribution to the History of the General Court Order , Vienna 1879, Holder, p. 99.

↑ Carl Chorinský in The Austrian Executiv Trial: A Contribution to the History of the General Court Order , Vienna 1879, Hölder, p. 99 ff.

↑ Carl Chorinský in The Austrian Executiv Trial: A Contribution to the History of the General Court Order , Vienna 1879, Hölder, p. 104.

^ Carl Chorinský in The Austrian Executiv Process: A Contribution to the History of the General Court Order , Vienna 1879, Holder, p. 105 f.

↑ Introduced in Liechtenstein by the Princely Ordinance of February 18, 1812 regarding the introduction of the General Civil Code, the General Austrian Court Code and the Austrian Code of Crimes and Serious Police Offenses.

^ Text in Fraktur (font) : Taxordnung

↑ See e.g. E.g .: Baden language regulation , language issue in the Prague Chamber of Commerce and Industry . Basically: the peoples' right to self-determination .

^ Gertrud Elisabeth Zündel: "Karl von Stremayr". Unprinted dissertation, Vienna 1944, pp. 170 and 179.

↑ Whether the West Galician judicial system was actually introduced “on a trial basis” is controversial in jurisprudence.

^ Patent dated December 19, 1796 online .

↑ See also the court decree of 23 August 1819, in which a similar regulation is provided for the AGO.

↑ Thomas Olechowski, Legal History: Introduction to the Historical Foundations of Law, Vienna 2010, 3rd edition, Verlag Facultas.wuv, ISBN 978-3-7089-0631-7 , margin no. 1432.

↑ See for the list: Carl Chorinský in The Austrian Executiv Process: A Contribution to the History of the General Court Order , Vienna 1879, Holder, p. 112 f.