Amendment Of The Constitutional Court Act 1953, The Code Of Civil Procedure, Except Dispute Act And The Code Of Criminal Procedure 1975

Original Language Title: Änderung des Verfassungsgerichtshofgesetzes 1953, der Zivilprozessordnung, des Außerstreitgesetzes und der Strafprozeßordnung 1975

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92. Federal Law, with which the Constitutional Court Act 1953, the Civil Procedure Code, the Non-Strike Act and the Criminal Procedure Act 1975 are amended

The National Council has decided:

Article 1

Amendment of the Constitutional Court Act 1953

The Constitutional Court Act 1953-VfGG, BGBl. No. 85/1953, as last amended by the Special Penal Limitation Act, BGBl. I n ° 46/2014, shall be amended as follows:

1. § 7 (2) reads:

" (2) In advising cases in which the legal question has already been sufficiently clarified by the previous case law of the Constitutional Court, the presence of the chairman and of four vocal chieftains is sufficient for the quorum. At the request of each member, the (further) consultation shall only take place in the presence of at least the number of voting leaders referred to in paragraph 1 above. "

1a. § 11 reads as follows:

" § 11. (1) Members (substitute members) shall report to the President within one month of their appointment the following activities:

1.

the exercise of a profession;

2.

any managerial position in a limited liability company, company with limited liability, cooperative, foundation or savings bank, in particular as a member of the executive board or supervisory board of a public limited company, as a managing director or member the Supervisory Board of a company with limited liability or a cooperative, as the foundation board or member of the supervisory board of a foundation or as a member of the board of directors or savings bank council of a savings bank.

If one of the activities mentioned in Z 1 and 2 is taken up or terminated after the appointment has been made to the member (substitute member), this shall also be reported to the President within one month.

(2) The President shall publish the activities reported in accordance with paragraph 1 in the case of the members (substitute members) published on the www.vfgh.gv.at website.

(3) The publications referred to in paragraph 2 shall be maintained for a period of three years after the end of the respective activity referred to in paragraph 1. "

1b. In Section 12 (2), the point at the end of the Z 2 is replaced by a line-point and the following Z 3 is added:

" 3.

if there are other important reasons that are likely to cast doubt on their full unpartiality. "

1c. § 12 (5) reads:

" (5) In the event of an examination of the legality of regulations, the legality of procurations of the re-announcement of a law (state treaty), the constitutionality of laws or the legality of state contracts, excluded:

1.

if the examination is to be carried out at the request of a court, the members (substitute members) who are members of the requesting court;

2.

if the examination is to be carried out at the request of a person who, as a party to a case determined by a court of ordinary law in the first instance, is violating the rights of the person, the members (substitute members) who are the parties to the the ordinary court which has ruled the case in the first instance or which has to decide on the appeal brought against the decision. '

(1d) Section 17 (1) reads:

" § 17. (1) All pleadings and inserts can be easily introduced. The speaker may, on the basis of a reasonable period of time, apply to the party the contribution of so many copies in paper form, that any party (authority) to be charged according to the law may be sent a copy. "

1e. In § 17 para. 2 the turn "57, 62" through the turn "57, 57a, 62, 62a" replaced.

1f. In § 18, the turn is: "§ § 15 and 17" through the turn § § 15, 17, 57 (2), last sentence, § 57a (3) and (4), § 62 (3), last sentence, and § 62a (3) and (4) " replaced.

2. § 19 (3) and (4) reads:

" (3) Without further proceedings and without prior negotiation, a decision may be taken in a non-public meeting at the request of the speaker:

1.

the rejection of the treatment of an application; a complaint pursuant to Art. 139 (1b) B-VG, Art. 140 (1b) B-VG and Article 144 (2) B-VG;

2.

the rejection of an application or a complaint

a)

Apparent non-jurisdiction of the Constitutional Court,

b)

Failure to meet a legal deadline;

c)

unbridled lack of formal requirements,

d)

Legally determined matter and

e)

Lack of legitimacy;

3.

the cessation of the proceedings for the withdrawal of the application or for the seizure of a seizure (§ 86);

4.

the decision in cases where the legal question has already been sufficiently clarified by the previous case law of the Constitutional Court.

(4) The Constitutional Court may depart from an oral hearing if the pleadings of the parties to the constitutional procedure and the files submitted to the Constitutional Court indicate that the oral discussion a further clarification of the case cannot be expected. "

2a. § 19 (5) deleted.

Section 20 (1a) to (4) reads as follows:

" (1a) Decisions on the granting of procedural assistance, including those relating to the replacement of cash outlays, shall be taken by the speaker, such as the dismissal or rejection of an application for procedural assistance in the event that the Constitutional Court is not gathered, the President at the request of the Speakers.

(2) In particular, the speaker for the preparation of the hearing may order the hearing of participants, witnesses, experts and respondents, the taking of an eye certificate, the creation of documents as well as office and court records. as well as information from administrative authorities and courts.

(3) The administrative authorities and courts may, on the occasion of the submission of files to the Constitutional Court, require that certain files or file components in the public interest be exempted from the inspection of the file. If the speaker deems the request to be too large, he shall have the administrative authority or to hear the Court of First Instance's concerns and, if necessary, to seek a decision of the Court of Justice to be taken in a non-public sitting. However, access to the file may not be granted in the case of file components which were excluded from the inspection of the file in the administrative procedure or in proceedings before the court. The managing authority or the court has to refer to the relevant file components on the occasion of the submission of the files.

(4) The speaker may carry out the preparatory inquiries himself, or request the competent administrative authority or the competent court. "

3a. § 20 (5) deleted.

3b. According to § 20, the following § 20a is inserted:

" § 20a. Without prejudice to § 85, the Constitutional Court may, by means of a decision, grant the Constitutional Court to legal protection in cases where it is necessary in accordance with the provisions of European Union law. "

3c. In § 31 the last sentence is:

"Decisions pursuant to Section 19 (3) (1) require unanimity."

3d. § 35 (1) reads:

" § 35. (1) Unless otherwise specified in this law, the proceedings before the Constitutional Court shall be the Civil Procedure Code-ZPO, RGBl. 113/1895, apply mutasensitily. "

3e. The previous paragraphs 2 and 3 of § 57 become paragraphs 3 and 4; the new § 57 para. 2 reads:

" (2) The application for the annulment of a regulation or of certain bodies of such a court and of a person pursuant to § 57a may only be made if the regulation directly applies in the case before the court in the pending case, or if the legality of the Regulation is a preliminary question for the decision of the case pending before the Court of First Instance, or, in the opinion of the applicants, it would be. The request shall state to what extent the Court of First Instance shall apply the Regulation and what effect the decision of the Constitutional Court would have on the case pending before the Court of First Instance. "

4. In accordance with § 57, the following § 57a is inserted:

" § 57a. (1) A person who, as a party to a case decided by a court of ordinary law in the first instance, raises a legal remedy in good time and is infringed in her rights on account of the application of an illegal regulation. , at the same time, can submit a request to repeal the Regulation as unlawful (Art. 139 (1) Z 4 B-VG). The position of such an application is inadmissible:

1.

in the procedure for the ordering or enforcement of the return of children who are unlawfully spent or held back (§ 111a of the External Strg Act);

2.

in the infringement procedure (§ § 454 to 459 ZPO);

3.

in the proof-of-evidence procedure (§ § 384 to 389 ZPO);

4.

in accordance with § 37 (1) of the rental law-MRG, BGBl. No 520/1981, Section 52 (1) of the Housing Property Act 2002-WEG 2002, BGBl. I n ° 70/2002, and Section 22 (1) of the Housing Charitable Law-WGG, BGBl. No 13/1979;

5.

in the proceedings concerning the termination of rental contracts and the clearance of rental items;

6.

in the case of medial provisions in accordance with Section 180 of the Notarial Order-NO, RGBl. No 75/1871;

7.

in accordance with the provisions of the Subsisting Law 1985-UVG, BGBl. No 451/1985;

8.

in insolvency proceedings;

9.

in the executive proceedings and in the proceedings concerning injunctions in accordance with the provisions of the Executive Order-EO, RGBl. No 79/1896, including the procedure for the declaration of enforceable conditions;

10.

in the case of judicial cooperation in criminal matters, in particular extradition, surrender, mutual recognition and enforcement.

(2) The legal representative of a youthful accused (§ 38 of the Law on Juvenile Justice 1988-JGG, BGBl. No 599/1988) has the right, even against the will of the accused in his favour, to submit a request to waive the regulation as unlawful.

(3) The application shall contain beyond the requirements of § 57:

1.

the designation of the decision against which the party raises an appeal and the ordinary court which it has adopted;

2.

the information required to assess whether the application has been submitted in good time.

(4) The application shall be accompanied by a copy, copy or copy of the decision against which the party collects an appeal, as well as a copy or copy of that appeal.

(5) The Constitutional Court shall immediately inform the ordinary court of first instance of the position of an application in accordance with paragraph 1 of this Article. This has to inform the Constitutional Court of its decision on the timeliness and admissibility of the legal remedy.

(6) In the proceedings pending before the Court of Appeal, proceedings may take place until the date of delivery or termination of the proceedings. Notification of the recognition of the Constitutional Court only acts such acts or orders and decisions are made which cannot be influenced by the knowledge of the Constitutional Court or which question the question not to conclude and to allow no postponing. "

4a. The previous paragraphs 3 and 4 of section 62 are given the sales denominations 4 and 5; the new section 62 (3) reads as follows:

" (3) A court or person pursuant to Section 62a may apply the application for the annulment of a law or of certain bodies of such a person only if the law directly applies the law in the case pending before the court or the court of law. if the constitutionality of the law is a preliminary question for the decision of the case pending before the court or, in the opinion of the applicants, it would be. The request shall state to what extent the court should apply the law and what effect the decision of the Constitutional Court would have on the case pending before the Court of First Instance. "

5. § 58 (1) last sentence reads:

"In the cases of Art. 139 (1) (1) (1) and (4) B-VG, the parties involved in the case shall also be charged."

6. In accordance with § 62, the following § 62a is inserted:

" § 62a. (1) A person who, acting as a party to a case decided by a court of ordinary law in the first instance, raises a legal remedy in good time and is infringed on the grounds of application of an unconstitutional law in her rights Claims that at the same time a request can be made to repeal the law as unconstitutional (Art. 140 paragraph 1 Z 1 lit. d B-VG). The position of such an application is inadmissible:

1.

in the procedure for the ordering or enforcement of the return of children who are unlawfully spent or held back (§ 111a of the External Strg Act);

2.

in the infringement procedure (§ § 454 to 459 ZPO);

3.

in the proof-of-evidence procedure (§ § 384 to 389 ZPO);

4.

in accordance with § 37 (1) MRG, § 52 (1) WEG 2002 and Article 22 (1) of the WGG;

5.

in the proceedings concerning the termination of rental contracts and the clearance of rental items;

6.

in the case of medial measures in accordance with § 180 NO;

7.

in the proceedings in accordance with the provisions of the UVG;

8.

in insolvency proceedings;

9.

in the executive procedure and in the proceedings concerning injunctions in accordance with the provisions of the EO, including the procedure for the declaration of enforceable;

10.

in the case of judicial cooperation in criminal matters, in particular extradition, surrender, mutual recognition and enforcement.

(2) The legal representative of a juvenile accused person (§ 38 of the JGG) has the right, even against the will of the accused in his favour, to submit a request to lift the law as unconstitutional.

(3) The application shall contain beyond the requirements of § 62:

1.

the designation of the decision against which the party raises an appeal and the ordinary court which it has adopted;

2.

the information required to assess whether the application has been submitted in good time.

(4) The application shall be accompanied by a copy, copy or copy of the decision against which the party collects an appeal, as well as a copy or copy of that appeal.

(5) The Constitutional Court shall immediately inform the ordinary court of first instance of the position of an application in accordance with paragraph 1 of this Article. This has to inform the Constitutional Court of its decision on the timeliness and admissibility of the legal remedy.

(6) In the proceedings pending before the Court of Appeal, proceedings may take place until the date of delivery or termination of the proceedings. Notification of the recognition of the Constitutional Court only acts such acts or orders and decisions are made which cannot be influenced by the knowledge of the Constitutional Court or which question the question not to conclude and to allow no postponing. "

7. § 63 (1) last sentence reads:

" In the cases of Art. 140 (1) Z 1 lit. a and d B-VG are also to be charged with the parties involved in the case. "

8. § 66 Z 1, last sentence shall be deleted.

9. In the second main part of the second part, in the heading to Section I, after the word "Managing Authorities" the phrase "and findings and decisions of the Administrative Courts" inserted.

10. In § 67 (3) and (4) and § 68 (1), the following shall be given in accordance with the phrase "illegality of a shelling" the phrase "or a decision of an administrative authority or a recognition or decision of an administrative court" inserted.

11. In Section 68 (1) and Section 71a (1), the word order shall be "Delivery of this fog" through the phrase " his/her/ of their service " replaced.

(12) In Section 71a (1), the phrase "the decision of a managing authority, with the" through the phrase " a decision of an administrative authority or a decision of an administrative court or a decision of an administrative court with which or with the " replaced.

13. In § 71a (4), after the word "Know" the phrase " , the contested decision, the judgment under appeal, or The contested decision " inserted.

14. § 82 (1) second sentence reads:

"It begins with the day of delivery of the discovery."

Section 83 is added to the following paragraph 3:

" (3) § 20 (3) shall apply mutaficly, with the proviso that the competent authority shall, in so far as it has not already done so on presentation of files to the Administrative Court, on the occasion of the submission of files by the Administrative Court to the The Constitutional Court may require that certain files or file components in the public interest be exempted from the inspection of the file. "

Section 94 is added to the following para. 29:

" (29) In the version of the Federal Law BGBl. I n ° 92/2014 are in force in except for power:

1.

§ 20 (2) to (5), the title of Section I of the second part of the second part, section 67 (3) and (4), section 68 (1), section 71a (1) and (4), section 82 (1), second sentence, and section 83 (3), with the end of the day of the proclamation of this federal law;

2.

§ 7 (2), § 12 (2) and (5), § 17 (1) and (2), § 18, § 19 (3) to (5), § 20 (1a) to 5, § 20a, § 31, § 35 (1), § 57 (2) to (4), § 57a, § 58 (1), last sentence, § 62 (3) to (5), § 62a, § 63 (1), last sentence, and § 66 Z 1 last sentence with 1. Jänner 2015. "

Article 2

Amendment of the Code of Civil Procedure

The Civil Procedure Code-ZPO, RGBl. No. 113/1895, as last amended by the Arbitration Amendment Act 2013, BGBl. I No 118/2013, shall be amended as follows:

In accordance with § 528a, the following section and heading is inserted:

" Fourth Section

Party request for consideration of the legality of regulations and rallies on the re-admissibility of a law (state treaty), the constitutionality of laws and the legality of state contracts

§ 528b. (1) The conditions and the effect of the application of a party pursuant to Art. 139 (1) (4) (4), Art. 139a, Art. 140 (1) (1) (1) (lit). d and Art. 140a B-VG are governed by the provisions of the Constitutional Court Act 1953-VfGG, BGBl. No. 85/1953. The agreement of the Constitutional Court from the application is to be taken into the process and to be brought to the attention of the opponent.

(2) The examination of the appeal and the decision on the timeliness and admissibility of the appeal lodged with the application shall not be affected by the application. The Court of First Instance shall immediately inform the Constitutional Court of a final revocation of the appeal as late or otherwise inadmissible and of an effective withdrawal of the appeal. Acts, orders or decisions relating to the provisional liability, the effect of the law or the enforceability of a decision may be made or taken regardless of the application.

(3) After a long period of recognition of the Constitutional Court, the proceedings shall be continued without delay from its own motion before the Appeal Court, which, in its decision on the appeal, shall be addressed to the Court of Appeal of the Constitutional Court committed. "

Article 3

Amendment of the Non-Strike Act

The Extrastreit Act-External StrG, BGBl. I n ° 111/2003, as last amended by the Adult Protection Act, BGBl. I n ° 158/2013, shall be amended as follows:

1. In the I. Main piece of the table of contents, after the line " 8. Section: Enforcement of Decisions " the line " 9. Section: Party request for consideration of the legality of regulations and rallies on the re-admissibility of a law (state treaty), the constitutionality of laws and the legality of state contracts " inserted.

2. In II. The main part of the table of contents will be after the line " 2. Section: Adoption of the child instead of " the line " 2a. Section: Recognition of foreign decisions on the adoption of children " inserted.

3. In II. The main part of the table of contents is not the line " 3. Section: legitimation by the Federal President " .

4. In II. The main part of the table of contents will be the line " 7. Section: Regulation of the care and personal traffic between parents and underage children " through the row " 7. Section: Regulation of the care and personal contacts " replaced.

5. In II. The main part of the table of contents will be after the line " 9. Section: Procedure relating to property rights for disabled persons " the line " 9a. Section: Recognition, declaration of enforceability and enforcement of foreign decisions on the protection of the person or the property of an adult " inserted.

6. In accordance with § 80, the following 9. Section with headline inserted:

" 9. Section

Party request for consideration of the legality of regulations and rallies on the re-admissibility of a law (state treaty), the constitutionality of laws and the legality of state contracts

§ 80a. (1) § 528b ZPO is to be applied in a reasonable way.

(2) The court of second instance has in the proceedings pending before it on legal court decisions pursuant to Section 283 of the German Civil Code (ABGB) and in accordance with § § 28, 29 and 38 of the German Civil Code (UbG) and in accordance with § § 16 and 17 HeimAufG also in the case of the application of the party's request. decision. "

Article 4

Amendment of the Criminal Procedure 1975

The Criminal Procedure Code 1975-StPO, BGBl. No. 631/1975, as last amended by the Criminal Procedure Law Amendment Act 2014, Federal Law Gazette (BGBl). I No 71/2014, shall be amended as follows:

1. According to § 285i the following § 285j is inserted:

" § 285j. In the case of an agreement of the Constitutional Court in accordance with § § 57a (5) first sentence or 62a (5) first sentence VfGG, the regional court has to proceed according to § 285a and a copy of its decision or a decision taken pursuant to section 285b to the Constitutional Court and, in the case of a related appeal, to submit the agreement of the Constitutional Court to the Higher Regional Court or to state that there is no reason for proceeding in accordance with Section 285a. "

2. § 294 (4), the following sentence is added:

"If an agreement of the Constitutional Court is before the Higher Regional Court (§ 285j), the Chairman shall forward the decision to the Constitutional Court to reject the decision on the refusal."

3. In § 467 (5), final half-sentence, before the word "to be presented" the expression "-if necessary, together with an agreement of the Constitutional Court in accordance with § § 57a (5) first sentence or 62a (5) first sentence VfGG-" inserted.

4. In § 470 Z 1, the word sequence shall be set at the end before the second stroke. " , in which cases it may be required to forward this decision to the Constitutional Court " inserted.

Section 514 is added to the following paragraph 26:

" (26) § § 285j, 294 para. 4, 467 para. 5 and 470 Z 1 in the version of the Federal Law BGBl. I n ° 92/2014 is 1. Jänner 2015 in force. "

Fischer

Faymann