Mandatory manu

The manuscript ( lat. Manus “hand” and ductus “leadership”) is a legally stipulated information, instruction, instruction and education obligation of a “person concerned” about his rights.

The obligation to provide instructions can be imposed on public and private-law institutions and persons working in them, whereby the term itself is mainly applied in Austria and Liechtenstein to the instruction and instruction obligation of authorities, courts and the public prosecutor's office. In Germany, the term “ obligation to notify ” is used for this .

The obligation to maneuver always corresponds with the right of the person concerned to information and transparency and also results from the principle of good faith . The violation of the obligation to maneuver can lead to inadequacy of the court or administrative procedure.

purpose

With the obligation of the authorities and courts as well as of companies to maneuver, those affected by a measure and those who are weaker in the hierarchy should be given the opportunity to recognize their position, rights and obligations and, based on this impression, to correctly assess and react to the measure or situation. If he wants to.

Demarcation

In contrast to the duty to provide information , the duty to maneuver is much more extensive and place more responsibility on the person obliged.

civil right

In addition to the general obligation to lead the relevant proceedings, the head of proceedings (e.g. the judge ) also has the obligation to guide the legally ignorant party so that they can actually exercise their rights (see e.g. §§ 182 ff , 432 ÖZGB , § 182, 226 FL-ZGB ).

According to jurisprudence, the limit of the obligation to maneuver is found where the judge would give one party an advantage over the other party by (too) extensive maneuvering. Parties represented by a lawyer also generally require less information, instruction, guidance and clarification than unrepresented parties.

Criminal law

According to Sections 3 and 6 of the Austrian Code of Criminal Procedure and Section 3 of the FL-Code of Criminal Procedure , all authorities involved in criminal proceedings (e.g. criminal police , public prosecutor's office , court) must investigate the truth and clarify all the facts that are necessary for assessing the offense and the accused by Meaning are. Thus, the circumstances serving to burden and defend the accused must be taken into account with the same care and they are obliged to inform the accused about his rights, in particular the right to remain silent (see e.g. §§ 7 Paragraph 2, 157 Paragraph 1 ÖStPO, § 108 Paragraph 1 FL-StPO, Art 8 of the ECHR ), to inform and instruct.

Witnesses , in particular their relatives, are also to be instructed about their obligation to be truthful when testifying and at the same time about the right not to incriminate themselves and they are to be informed about a possibly existing right to refuse to testify / to refuse to provide information (see e.g. § 157 Paragraph 1 ÖStPO, § 108 Abs. 1 FL-StPO)

See also: Directive 2012/13 / EU on the right to instruction and information in criminal proceedings.

Administrative law

Authorities have to give persons the necessary instructions to carry out their procedural acts and as a rule to instruct them about the legal consequences directly connected with these acts or omissions (see e.g. § 13a AVG , Art 69 Landesverwaltungspflegegesetz Liechtenstein).

The obligation to maneuver also applies in social security law (see e.g. § 27a ÖB-KUVG).

In the case of persons represented by a lawyer, the authorities' obligation to maneuver is severely restricted.

Bias

A judge's duty of maneuver is extensive. If a judge does not observe the obligation to maneuver towards the parties, this can constitute a reason for bias (OLG Vienna in 1 R 188 / 11s).

Companies

Companies to their customers and to some extent the staff to provide information and to educate (also instruction) committed (see, eg. As consumer protection , data protection , EU chemicals regulation Regulation (EC) no. 1907/2006 (REACH) , and others more).

This obligation to employees arises from the employer's general duty of care .

literature

Hubertus Schumacher: Judicial instruction obligations: (Basics, practical questions, guidelines, limits) . 1st edition. Manz , Vienna 2000, ISBN 3-214-06243-3 .
Reinhard Klaushofer: Community law equivalence and effectiveness principle and national administrative procedural and procedural law . 1st edition. Dissertation, Salzburg 2001.
Klaus Schwaighofer : The new code of criminal procedure: Introduction, legal text, comments . 1st edition. Facultas WUV, Vienna 2008, ISBN 978-3-7089-0208-1 .
Thomas Jaeger: System of a European jurisdiction for intellectual property rights: Basics - Structure - Procedure . 1st edition. Springer , Heidelberg; Dordrecht; London; New York; Berlin 2013, ISBN 978-3-642-39672-4 .

Christoph Grabenwarter : Administrative procedural law and administrative jurisdiction . 2nd Edition. Springer , Vienna, New York 2010, ISBN 978-3-211-99328-6 .

Individual evidence

↑ For Austria see z. B. Case OGH 8 Ob 103 / 11x.
↑ see Hans W. Fasching , "Commentary on civil process laws", Manz Verlag , comments on § 189 ZPO; LES 1998, 236 f., FL-OGH in case 3 C 458/98 and in case 3 Cg 199/99
↑ For Germany: § 136 StPO.
↑ For Germany: § 52 , § 55 , § 57 Code of Criminal Procedure .
↑ Directive 2012/13 / EU of the European Parliament and of the Council of May 22, 2012 on the right to instruction and information in criminal proceedings (PDF) (OJ L 142/1).

[1] For Austria see z. B. Case OGH 8 Ob 103 / 11x.

[2] see Hans W. Fasching , "Commentary on civil process laws", Manz Verlag , comments on § 189 ZPO; LES 1998, 236 f., FL-OGH in case 3 C 458/98 and in case 3 Cg 199/99

[3] For Germany: § 136 StPO.

[4] For Germany: § 52 , § 55 , § 57 Code of Criminal Procedure .

[5] Directive 2012/13 / EU of the European Parliament and of the Council of May 22, 2012 on the right to instruction and information in criminal proceedings (PDF) (OJ L 142/1).