Civil Procedure Law (Austria)

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Civil proceedings
  Cognitive process
  Civil process
(litigation)		 Non-litigation proceedings
(proceedings other than litigation)
Enforcement proceedings
  Execution proceedings
Bankruptcy proceedings

Under civil proceedings , including Civil Law Procedure called, is meant in Austria , the assertion of private law claims and rights or legal relationships.

The assertion must, except in exceptional cases ( self-defense , emergency , self-help ), be made before an ordinary court . This court primarily examines whether the plaintiff has the alleged private law claim against the defendant (investigation proceedings = civil litigation in the narrower sense, non-litigation proceedings). The result of this examination is usually given in the form of a judgment, which confirms or rejects the alleged claim against the litigant. If a debtor voluntarily fails to comply with a legally established or notarized obligation, this can be effectively enforced in foreclosure proceedings (execution). If the debtor is no longer able to meet his obligations due to insufficient assets, i.e. insolvent, insolvency proceedings are initiated to distribute the remaining assets.

Civil proceedings ( judiciary ) are to be distinguished from administrative ( executive ) proceedings . The theory of interests , subordination theory and subject theory are used to delimit these.

Cognitive process

In the investigation procedure , the court determines the underlying facts and applies the relevant legal norms to them. As a rule, there is an oral hearing in which the parties are heard and evidence proceedings are carried out. The decision-making process usually ends - unless a settlement is reached or the lawsuit is withdrawn - with a judgment that (in the case of performance judgments) creates an enforcement title . In principle, the judgment can still be fought with legal remedies (see appeal and appeal ).

A distinction is made between two types of trial proceedings: civil proceedings (the "contentious" proceedings) and non-litigation proceedings (or also proceedings outside of litigation).

The contentious process, the civil process, is the norm. Certain civil law matters, such as B. custody of children, adoptions, appointment of trustees, probate proceedings or land registry proceedings, however, are dealt with in non-contentious proceedings.

The factual, local and functional jurisdiction of Austrian courts is generally regulated in the Jurisdiktionsnorm (JN). In proceedings with an international reference, in particular where there are points of contact with EU member states, there are a number of special regulations, in particular on compulsory and electoral jurisdictions , in the EuGVVO .

Litigation

The litigation is mainly based on the Code of Civil Procedure (ZPO). Accordingly, it is also referred to as a "civil process". It is characterized by the fact that the plaintiff and the defendant face each other, appear before the court from opposing positions of interest (adversarial) and act on this by means of motions. In its judgment, the court either grants or rejects the plaintiff's request.

Out-of-court proceedings

The non-contentious procedure is, more precisely, a "non-contentious procedure", i. H. a procedure that is not a conventional litigation, but runs according to the special rules of the extra-disputes law (extraStrG).

Non-contentious matters are a heterogeneous group of legal matters that can be roughly divided into three areas:

Enforcement proceedings

The enforcement process serves to realize the rights of creditors through state coercion. The claim of the obligee, which has usually been established in the judgment process, is forcibly realized in the enforcement process. In the case of performance judgments, the enforcement procedure can follow the judgment procedure. Now the judgment is carried out by, depending on the type of execution, e.g. B. Items are seized and then disposed of.

Execution proceedings

In an execution procedure , the execution is carried out on individual assets of the debtor (special execution). The principle of priority applies: the creditors are satisfied according to their rank.

Most important source of law: enforcement order (EO)

Bankruptcy proceedings

Insolvency proceedings can take the form of bankruptcy proceedings, reorganization proceedings with or without personal responsibility or, for natural persons, in the form of a debt settlement procedure.

Bankruptcy proceedings

In bankruptcy proceedings , execution is carried out on the debtor's entire assets (general execution). The parity principle applies: the creditors are proportionally (quota) satisfied.

Most important source of law: Insolvency Code (IO)

Rehabilitation process

The restructuring process (with or without self-administration), on the other hand, aims at the restructuring of the debtor and is associated with partial debt relief. The restructuring procedure with personal responsibility replaced the old compensation procedure from July 2010 (Insolvency Law Amendment Act 2010).

Most important source of law: Insolvency Code (IO)

Debt settlement process

The debt settlement procedure, like the reorganization procedure, aims to reorganize the debtor, but is (only) open to natural, i.e. not legal, persons. Under certain conditions, the debtor can apply for a skimming procedure, at the end of which, if certain quotas are met, the debtor can be released from the debtor by the court, i.e. he is released from the obligation to pay his old debts.

Most important source of law: Insolvency Code (IO)

The enforcement process
feature Execution proceedings Bankruptcy proceedings
Scope of asset access: Special execution or singular execution :
Enforcement takes place in individual assets of the debtor objects. 		General execution or universal
execution : Enforcement covers the entire debtor's assets.
The position of the obligee depends on: Priority principle :
fast acting creditors are satisfied with priority. 		Parity principle :
creditors are treated equally (except preferred creditors).
Extent of the satisfaction of creditors: Priority principle :
Scope depends on the time of the execution authorization 		Percentage :
Quotative satisfaction that corresponds to the ratio of assets to liabilities of the debtor's assets.
Requirement: Solvency of the debtor / obligated party Insolvency or over-indebtedness of the debtor
Purpose of the procedure: Satisfaction of creditors' claims Regulation of the insolvency situation through the best possible satisfaction of creditors or restructuring
Aims:
  • Money redemption
  • Execution in kind
  • Execution for security
  • liquidation
  • Redevelopment
  • reorganization

Jurisdiction

The civil jurisdiction is in Austria by the district courts , regional courts , Courts of Appeal and the Supreme Court exercised. In the first instance , the district courts and regional courts are responsible - which court is specifically (factually) responsible is usually determined by the amount in dispute, but in certain cases from the nature of the subject of the dispute (so regional courts are always competent in the first instance in official liability cases) . In the second instance, the regional courts decide on appeals against the decisions of the district courts and the higher regional courts decide on decisions of the regional courts. In the third instance, the Supreme Court is always responsible.

In addition to the state civil courts, arbitration tribunals can also be set up to decide on a civil law claim by means of a corresponding agreement .

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