Mandatory dunning procedure

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A mandatory dunning procedure is a legal institution of Austrian civil procedure law.

In general, the dunning procedure is a simplified procedure in which a claim for payment of a monetary claim can be asserted. This dunning procedure is mandatory if its implementation is not at the plaintiff's discretion, but is either an admissibility requirement for the subsequent dispute procedure or an integral part of it. The motives for introducing a mandatory dunning procedure are of a process-economical nature: The processing effort is to be reduced for all those cases in which the defendant cannot or does not want to raise any content-related objections to the claim, but has not yet made it due to insufficient solvency or other reasons. In these cases, the dunning procedure also has the advantage that the creditor comes into possession of an enforcement or execution title comparatively quickly . The Austrian civil procedure law provides for an obligatory dunning procedure in those cases in which the payment of a sum of money not exceeding € 75,000 is requested.

Procedure

The mandatory dunning procedure is regulated in §§ 244 ff. ZPO . There are special provisions for the procedure before the district courts in § 448 ZPO and for the procedure in labor law matters in § 56 ASGG .

After the first review of the comments received action which adopts judge or judicial officer to without prior negotiation or consultation with the defendant conditional order for payment with which the defendant is applied to the amount claimed, including the coveted interest as well as those established by the court fees within fourteen days of the plaintiff to pay or, if the asserted claim is disputed, to raise an objection within four weeks after delivery of the payment order.

With the conditional payment order , a first decision on the matter is made, against which in the majority of cases no objection is made, so that the process is ended quickly and relatively inexpensively by creating an enforcement title . (The order for payment is "conditional" insofar as it only becomes enforceable if no objection is raised.)

An order for payment may not be issued if

  • the action is to be dismissed (e.g. because the court has no jurisdiction),
  • the claimed claim is already according to the information in the lawsuit or is obviously not actionable, not yet due or dependent on a consideration or if the whereabouts of the defendant is not known,
  • the defendant is domiciled, habitually resident or domiciled outside of Austria,
  • the action is inconclusive, d. H. the claim raised cannot be legally derived from the facts presented.

In the first case, the action must be rejected (without hearing the parties); in the other cases, the ordinary procedure must be initiated immediately by setting up a preparatory meeting for the hearing.

The order for payment must be served on the defendant with the claim; if the dunning procedure is carried out with the help of automated data processing (see below) and if the payment order reflects the entire content of the claim, its delivery replaces the delivery of the claim.

Objection

If the defendant disputes the asserted claim, he can raise an objection (§ 248 ZPO) within four weeks after delivery of the payment order . This means that the order for payment becomes invalid; if the objection is expressly directed against only part of the claim, the order for payment only expires to this extent. After an objection, the ordinary procedure (by setting up the preparatory meeting for the oral hearing) is to be initiated.

An appeal against the issuance of the order for payment is not permitted. Only the cost decision contained in the payment order can be fought on its own with an appeal .

If the defendant does not object, the order for payment becomes enforceable after the objection period has expired. The court sends the plaintiff a copy of the payment order with a confirmation of enforceability .

Thus, the payment instruction is an execution title (§ 1, line 3 EO ), that is, so that the execution (execution) may be desired, such as on the basis of a final judgment.

Like a judgment after the entry into force of law, the enforceable order for payment has similar effects as this one, e.g. B. Uniqueness (" ne bis in idem ", process obstacle to the decided matter), binding effect, etc. a.

automation

In accordance with the authorization standardized in Section 250 ZPO, the mandatory dunning procedure is carried out with the help of automated data processing (ADV). For this purpose, plaintiff parties must submit their complaints using an official form for a so-called default action or according to the scheme of this form. The content of the complaint standardized in this way is entered into the ADV system of the Austrian judiciary, provided that the plaintiff has not already imported the complaint into the system by means of electronic legal transactions (ERV).

The payment orders are printed and sent centrally by the Austrian Federal Computing Center.

The date of delivery of the payment orders and the objection period are also recorded and monitored with the help of the ADV.

If, in exceptional cases, the payment order cannot be executed with the support of ADV, this is done using an identical or a copy of the complaint and a corresponding stamp ("manual payment order").

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