Property (Austria)

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In Austrian jurisprudence, property is a person's right to rule over a thing that can be enforced against everyone . The owner has the sole right to operate and manage the item as he wishes and to exclude any third party from it (§ 354 ABGB ).

The property belongs to the real property rights (property law in the narrower sense, § 308 ABGB ). Personal property rights, on the other hand, denote obligations or claims under the law of obligations (§ 859 AGBG). The ABGB understands property law in the narrower sense together with the law of obligations as property law in the broader sense.

Property as a full right in rem must be distinguished from limited rights in rem such as lien or servitude .

Constitutional law

Protection area

The Austrian Federal Constitution guarantees in Article 5 of the Basic Law on the General Rights of Citizens of 1867 (StGG 1867) property in the sense of an institute guarantee : "Property is inviolable. An expropriation against the will of the owner can only be done in the cases and in the Art enter, which the law determines. "

In Austria, property is also in accordance with Art 1 of the 1st Additional Protocol to the European Convention on Human Rights of 1952 (ZP 1) protected:

"Every natural or legal person has the right to respect for his property. No one may be deprived of his property unless the public interest so requires and only under the conditions provided for by law and by the general principles of international law.

However, paragraph 1 does not affect the right of the state to apply those laws which it deems necessary to regulate the use of property in accordance with the general interest or to secure the payment of taxes or other dues or fines. "

According to the autonomous interpretation of the European Court of Human Rights (ECHR), protected property also includes assets that the individual has a legitimate expectation to enjoy, in addition to already acquired furniture and real estate property and enforceable claims , as well as intellectual property rights and social security rights acquired through personal contributions Entitlements, but not tax-financed transfer payments .

Intervention

According to Art 1 ZP 1, possible encroachments on property are expropriation (Paragraph 1 Sentence 2), the usage regulation (Paragraph 2) comparable to the content and limitation provisions of the German Basic Law and those not mentioned in Paragraph 1 Sentence 1 of the case law of the ECHR developed other interventions .

justification

All interventions are subject to the general interest, legality and proportionality. Domestic regulations must be sufficiently accessible, known and predictable. In the absence of an express guarantee of expropriation compensation in Art 1 ZP 1, the Commission and the ECHR take the compensation requirement from the characteristic of proportionality. According to this, an expropriation under the rule of law can only be proportionate if adequate compensation is provided.

Accordingly, according to § 365 ABGB, an owner has to assign his property "if it demands the general best." The fact that indemnification must be a compulsory part of expropriation ( Junktim ) is also derived from the principle of equality (Art 7 of the Federal Constitutional Law ).

Based on these provisions, a number of laws provide for the possibility of expropriation in the public interest, for example for the construction of railways , roads or power stations . If the procedure for determining the compensation is not regulated in these laws, according to Art. 13 Administrative Relief Act (VEG) to apply the Railway Expropriation Compensation Act (EisbEG) accordingly.

The respective district court, which decides in non-dispute proceedings, is responsible in the first instance for questions of compensation .

Private law

definition

The General Civil Code defines property :

  • in the objective sense as "everything that belongs to someone, all his physical and incorporeal things" (§ 353 ABGB); It should be noted that most of the property law provisions of the ABGB are mainly intended for physical objects , which can sometimes be determined simply by interpretation.
  • in the subjective sense as “the right to switch the substance and uses of a thing at will, and to exclude everyone else from it” (§ 354 ABGB). Therefore the owner can “as a rule use his thing at will or leave it unused; he can destroy them, transfer them in whole or in part to others, or unconditionally go to the same, that is, leave them. ” (§ 362 ABGB).

protection

Property is therefore the full right in rem ; The owner can defend himself against encroachments through the property lawsuit (rei vindicatio; § 366 ABGB) and the property liberty action (actio negatoria; § 523 ABGB).

The limits of ownership are where the rights of another would be encroached upon or restrictions imposed in the general interest would be violated (Section 364 (1) ABGB); In some cases, these property restrictions are standardized in the ABGB as a balancing of interests (e.g. neighboring law, immission control).

Co-ownership

In Austrian law there is also co-ownership as an ideal share in the undivided thing (§§ 825 ff. ABGB). A special form is home ownership , in which an ideal share of a property is inextricably linked to the exclusive right of use to a specific, delimited spatial unit (the regulations for this can be found in the 2002 Condominium Act ).

Acquisition of property

The acquisition of the property takes place

If the derivative acquisition fails due to the non-authorization of the foreman - possibly only recognized later - property can nevertheless be acquired with appropriate honesty (based on weighing up the worthiness of protection and also for traffic protection), namely primarily through good faith acquisition from the unauthorized person , if the requirements of § 367 ABGB , such as purchase from the owner's shop steward, are fulfilled; or by prescription after the prescription period has expired (3 or 30 years). In both cases, the original acquisition takes place (subject to the respective requirements).

According to the principle of the causal tradition, the acquisition of property is two-act . Is required

  • a so-called title , which is primarily a legal transaction (such as a contract or testamentary disposition; in the original acquisition of property it is sometimes taught that the law itself forms the title)
  • as well as a type of acquisition (mode) - a type of handover is necessary for movable items, and for immovable items usually the incorporation of property rights in the land register .

Criminal law

The 6th section of the special part of the Criminal Code (Sections 125 - 168b StGB) includes "criminal acts against third-party assets" such as damage to property (Sections 125 f. StGB ), theft (Sections 127 ff. StGB), embezzlement, embezzlement , permanent deprivation of property (§ 135 StGB), robbery, extortion, fraud and money laundering.

As in German law, Austrian criminal law distinguishes between the purely civil law concept of property in the case of theft and the economic concept of property in the case of fraud.

On January 1, 2016, the value limits for property offenses were raised. Since then, pure theft or other property crimes have been punished less if there is no violence involved. Violent crimes, on the other hand, are punished more severely.

literature

Web links

See also

Individual evidence

  1. ↑ Heinz Barta: Civil Law: Outline and Introduction to Legal Thought Vienna 2004, p. 7/8
  2. ↑ Art. 5 Basic Law of December 21, 1867, on the general rights of citizens for the kingdoms and states represented in the Reichsrathe RIS , accessed on June 7, 2016
  3. ↑ Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms in the version of Protocol No. 11 Paris, March 20, 1952. Corrected translation agreed between Germany, Liechtenstein, Austria and Switzerland. Council of Europe website
  4. ↑ ECHR Series A 222, § 51 (1991) - Pine Valley Developments Ltd. and Others against Ireland (for the legitimate expectation of the buildability of a property)
  5. ↑ ECHR Rep. 1996 IV, §§ 39-41 - Gayguzus against Austria = JZ 1997, 405
  6. ↑ ECHR Series A 52, §§ 66 ff. - Sporrong and Lönnroth v. Sweden (1982) = EuGRZ 1983, 523
  7. ↑ Doris König: Protection of Property in European Law Bitburger Talks , 2004, p. 128
  8. ↑ ECHR Series A 102, § 110 - Lithgow and others v. United Kingdom (1986) = EuGRZ 1988, 350
  9. ↑ Doris König: Protection of Property in European Law Bitburger Talks , 2004, p. 131 ff.
  10. ↑ Federal Constitutional Law (B-VG) RIS , accessed on June 7, 2016
  11. ↑ Art 13 VEG, as amended by BGBl I 137/2001
  12. ↑ Law of February 18, 1878, RG Bl. No. 30, regarding expropriation for the purpose of manufacturing and operating railways
  13. ↑ Railway Expropriation Compensation Act - EisbEG RIS , accessed on June 7, 2016
  14. ↑ Arno Klien: Expropriation right Weinviertel platform forest protection, accessed on June 7, 2016
  15. ↑ Federal Act of January 23, 1974 on acts threatened with judicial punishment (Criminal Code - StGB) RIS , accessed on June 6, 2016.
  16. ^ Leonhard Dobusch: Criminal Law: Definitions AT and BT 2002, pp. 15, 24, accessed on June 6, 2016.
  17. ↑ Criminal law reform comes into force: From January 2016, stricter penalties for violent crimes will apply. Website of the Federal Ministry of Justice , press release of December 30, 2015
  18. ↑ Seff Dünser: From 2016, milder penalties for property offenses Vorarlberg online, December 31, 2015