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

Read the untranslated law here: https://www.global-regulation.com/law/austria/2994959/nderung-des-verfassungsgerichtshofgesetzes-1953%252c-der-zivilprozessordnung%252c-des-auerstreitgesetzes-und-der-strafprozeordnung-1975.html

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92. Federal law be changed with the Constitutional Court Act 1953, the code of civil procedure, the non-military law and the code of criminal procedure 1975

The National Council has decided:

Article 1

Amendment of the Constitutional Court Act 1953

The Constitutional Court Act 1953 - VfGG, Federal Law Gazette No. 85/1953, as last amended by the special pension limitation Act, Federal Law Gazette I no. 46/2014, is amended as follows:

1 paragraph 7 subsection 2:

"(2) for the advice of cases in which the legal question by the previous case law of the Constitutional Court is already sufficiently clear, the presence of the Chairman is sufficient quorum and four voice leaders." At the request of any Member the (more) advice only in the presence of at least the number of voice leaders referred to in paragraph 1 has to take place."

1a. section 11 reads:

"Section 11 (1) members (substitute members) have to report the President following activities within one month after your order: 1. the practice of a profession;"

2. any senior position in a company, a company with limited liability, Association, Foundation or savings bank, in particular as a member of the Board of directors or Supervisory Board of a public limited company, as Managing Director or member of the Supervisory Board of a company with limited liability or a cooperative, as the Board of directors or member of the Supervisory Board of a foundation or as a member of the Board of directors or a Sparkasse Savings Bank Council.

Is one of the appointment to the Board (substitute member) recorded in the Nos. 1 and 2 activities referred to or stopped, also this is the President within one month to sign.

(2) the President has the activities reported in accordance with paragraph 1 when the to publish on the website www.vfgh.gv.at published CVS of the members (substitute members).

(3) the publications referred to in paragraph 2 are to maintain for a period of three years after completion of each activity referred to in paragraph 1."

1B. In section 12, paragraph 2, the point is replaced at the end of the No. 2 by a semi-colon and following Z 3 added: "3. If there are other important reasons that are suitable, to put doubt in their full impartiality."

1 c. § 12 section 5 is as follows:

"(5) when testing the legality of regulations, of legality by proclamations of the municipality via the return statement of a law (Treaty), the constitutionality of laws or the legality of State contracts are excluded: 1. If the examination at the request of the Court making the members (spare), which belong to the applicant Court;"

2. If the examination at the request of a person making claims that as a party to a case decided by a Court of first instance in their rights to be violated, (alternate members), members belonging to the ordinary courts, which decided the case in the first instance or has to decide on the appeal against the decision."

1 d. Article 17, paragraph 1 reads:

"§ 17 (1) all pleadings and inserts can be inserted easily. The speaker can the party setting a reasonable period of time apply the provision of so many copies in paper form, that a copy can be placed in each Party (authority) to be charged according to the law."

1E. in § 17 paragraph 2 the phrase is "57, 62" by the phrase "57, 57a, 62, 62a" replaced.

1F. In article 18, the phrase is: "§§ 15 and 17" by the phrase "sections 15, 17, 57 par. 2 last sentence, article 57a, par. 3 and 4, § 62 para. 3 last sentence and article 62a, par. 3 and 4" replaced.

2. paragraph 19 paragraph 3 and 4:

"(3) without further proceedings and without a previous hearing can be decided in closed session at the request of the speakers: 1 the rejection of treating a request or a complaint pursuant to article 139 paragraph 1 b B-VG, article 140 para 1b B-VG and article 144 para. 2 B-VG;"

2. the rejection of an application or a complaint about a) Revelator not jurisdiction of the Constitutional Court, b) failure to comply with a statutory period, c) not fixed lack of formal requirements, d) legally decisive thing and e) lack of legitimacy;

3. the setting of the procedure for withdrawal of the application or hold harmless submission (paragraph 86);

4. the decision in law cases, in which the legal question by the previous case law of the Constitutional Court is already sufficiently clear.

(4) the Constitutional Court may waive a hearing, if the written pleadings of the parties to the constitutional proceedings and the files submitted to the Constitutional Court, that the oral discussion does not expect a further clarification of the case can be."

2A. section 19 para 5 is omitted.

3. paragraph 20 paragraph 1a to 4:

"(1a) the speaker makes decisions concerning the granting of legal aid including those about the replacement of cash outlay, such is about the AB or the rejection of an application for legal aid in the event that the Constitutional Court is not gathered, the President at the request of the officer.

(2) in particular the officer to prepare the proceedings may order the proving by deeds as well as administrative and court records the hearing of parties, witnesses, experts and respondents, the making of an Augenscheines, as well as obtain information by administrative authorities and courts.

(3) the administrative authorities and courts may request on the occasion of the presentation of acts to the Constitution Court, that certain files or file components be excluded from file inspection in the public interest. The speaker considers too far, the desire he has to listen to the managing authority or the Court about his concerns and to catch up with at most a non-public session to order of the Court. In file parts that were taken out during the administrative procedure or in proceedings before the Court of the inspection, inspection of files may not be given. The Court or the administrative authority has to identify the eligible components of the file on the occasion of the presentation of the files.

(4) the officer can perform the preparatory surveys themselves or request the competent administrative authority or the competent court so."

3A. § 20 paragraph 5 is omitted.

3B. The following article 20a is inserted after article 20:

'article 20a. Without prejudice to of § 85 of Constitutional Court in cases before him can recognize to an interlocutory injunction by decision, if this is required under the provisions of Union law."

3 c. in article 31 is the last sentence:

"Resolutions in accordance with § 19 para 3 Z 1 require unanimity."

3D. Article 35, paragraph 1 reads:

"§ 35. (1) where under this Act does not otherwise is determined, is on the procedure before the Constitutional Court the civil procedure - ZPO, RGBl. apply by analogy to no. 113/1895,."

3E. the previous paragraphs 2 and 3 of article 57 become paragraphs 3 and 4; is the new section 57 paragraph 2: "(2) by a court and a person pursuant to § 57a of the application for annulment of a regulation or by certain bodies of such it is possible only, if directly apply the Decree of the Court in the pending case or if the legality of the regulation is a preliminary question for the decision of the case before the Court or according to the applicant would be." "The application has to explain how the Court to apply the regulation and what impact the decision of the Constitutional Court on the pending the court case would have."

4. According to article 57, the following section 57a shall be inserted:

"§ 57a. (1) a person who collects a permissible means of law in time and claims to be injured due to application of illegal regulation in their rights, as a party to a case decided by a Court of first instance at the same time a request can, to repeal the regulation as illegal (article 139 paragraph 1 Z 4 B-VG). The position of such application is inadmissible: 1 children (§ 111a AußStrG); illegally spent in the proceedings to order or enforcement of the provision or holdout

2. in possession of disorder proceedings (sections 454 and 459 ZPO);

3. in the litigation (sections 384 to 389 ZPO);

4. in proceedings under section 37, paragraph 1 of the law of tenancy law - MRG, BGBl. No. 520/1981, § 52 para 1 of the apartment ownership Act 2002 - route 2002, Federal Law Gazette I no. 70/2002, and article 22 (1) of the apartment charitable act - WGG, BGBl. No. 13 / 1979;

5. in the procedure of the termination of leases and eviction from rental property;

6. in the proceeding of mittlerweilige arrangements in accordance with article 180 of the notary's Office order - NO, RGBl. No. 75-1871;

7. in the proceedings in accordance with the provisions of the maintenance advances Act 1985 - UVG, BGBl. No. 451/1985;

8. in the insolvency proceedings;

9. in enforcement proceedings and in the proceedings concerning restraining orders pursuant to the provisions of the enforcement order - EO, RGBl. No. 79/1896, including the procedure for the Declaration of enforceability;

10. in the process of judicial cooperation in criminal matters, in particular extradition, transfer, legal assistance, mutual recognition and enforcement.


(2) the legal representative of an accused young person (section 38 of the Juvenile Court Act 1988 - JGG, Federal Law Gazette No. 599/1988) has the right, even against the wishes of the accused whose favor to make regulation as illegal to pick up an application.

(3) the request shall contain the requirements of § 57,: 1. the designation of the decision against which the party collects an appeal, and of the ordinary court that they adopt;

2. the information which are required to assess whether the request is introduced in a timely manner.

(4) a copy, transcript or copy of the decision against which the party collects an appeal, as well as a transcript or copy of this appeal the application must be connected.

(5) the Constitutional Court is immediately reported to the ordinary court of first instance of the position of an application referred to in paragraph 1. This has communicated his decision on the timeliness and admissibility of the appeal to the Constitutional Court.

(6) in the proceedings pending in the Court of appeal may be made to the announcement or notification of the decision of the Constitutional Court only acts or orders and decisions made, which cannot be influenced by the finding of the Constitutional Court or not finally settle the question and allow no delay."

4A. the previous paragraphs 3 and 4 of § 62 received the terms of paragraph 4 and 5; the new article 62 par. 3 is as follows:

"(3) by a court or a person referred to in section 62a of request annulment of a law or by specific bodies of such is possible only, if directly apply the law of the Court in the pending case or when the constitutionality of the law is a preliminary question for the decision of the case before the Court or according to the applicant would be." "The application has to explain how the Court to apply the law and what impact the decision of the Constitutional Court on the pending the court case would have."

5. § 58 para 1 last sentence reads:

"In the cases of article 139 paragraph 1 Z are 1 and 4 B-VG to invite the parties to the case."

6. According to article 62, the following article 62a is inserted:

"section 62a. (1) a person who collects a permissible means of law in time and claims to be injured because of an unconstitutional law in their rights, as a party to a case decided by a Court of first instance at the same time a request can, to repeal the law as unconstitutional (art. 140 para 1 subpara 1 lit. d B-VG). The position of such application is inadmissible: 1 children (§ 111a AußStrG); illegally spent in the proceedings to order or enforcement of the provision or holdout

2. in possession of disorder proceedings (sections 454 and 459 ZPO);

3. in the litigation (sections 384 to 389 ZPO);

4. in proceedings pursuant to § 37 para 1 MRG, § 52 para 1 way 2002 and article 22, paragraph 1 WGG;

5. in the procedure of the termination of leases and eviction from rental property;

6. in proceeding to mittlerweilige arrangements in accordance with § 180 NO;

7. in the proceedings in accordance with the provisions of the UVG.

8. in the insolvency proceedings;

9. in enforcement proceedings and in the proceedings concerning restraining orders in accordance with the provisions of the EO, including the procedure for the Declaration of enforceability;

10. in the process of judicial cooperation in criminal matters, in particular extradition, transfer, legal assistance, mutual recognition and enforcement.

(2) the legal representative of an accused young person (§ 38 JGG) has the right to make the law as unconstitutional to repeal even against the wishes of the accused person in whose favor a request.

(3) the request shall contain the requirements of § 62,: 1. the designation of the decision against which the party collects an appeal, and of the ordinary court that they adopt;

2. the information which are required to assess whether the request is introduced in a timely manner.

(4) a copy, transcript or copy of the decision against which the party collects an appeal, as well as a transcript or copy of this appeal the application must be connected.

(5) the Constitutional Court is immediately reported to the ordinary court of first instance of the position of an application referred to in paragraph 1. This has communicated his decision on the timeliness and admissibility of the appeal to the Constitutional Court.

(6) in the proceedings pending in the Court of appeal may be made to the announcement or notification of the decision of the Constitutional Court only acts or orders and decisions made, which cannot be influenced by the finding of the Constitutional Court or not finally settle the question and allow no delay."

7 § 63 para 1 last sentence reads:

"In the cases of article 140 para 1 subpara 1 lit. a and d B-VG are also the parties involved in the case load."

8 § 66 Z 1 last sentence deleted.

9 in the main piece of the 2 part 2, in the heading to section I is inserted after the word "Authorities" the phrase "and findings and decisions of administrative courts".

10. in article 67 par. 3 and 4, and article 68, paragraph 1, the word order is respectively after the phrase "Illegality of a decision" "or a decision of an administrative authority or a decision or order of an administrative court" inserted.

11. in article 68, paragraph 1 and article 71a, paragraph 1, the phrase "Delivery this decision" is replaced by the phrase "his or her delivery".

12. in article 71a, paragraph 1, the phrase "the notice issued by an administrative authority, with the" by the phrase is "a decision or a decision of an administrative authority or a decision or decision of an administrative court, or with the" replaced.

13. in section 71a (4), the phrase ', the contested decision, the contested knowledge or the contested decision"is inserted after the word 'Decision'.

14 § 82 para 1 second sentence reads:

"It starts with the day of delivery of the decision."

15 § 83 the following paragraph 3 is added:

"(3) article 20 para. 3's mutatis mutandis apply subject to the proviso that the judge authority, insofar as it has not already done submission of files to the administrative court may impose on the occasion of the presentation of acts by the administrative court to the Constitutional Court, that certain files or file components be excluded from file inspection in the public interest."

16 § 94 29 the following paragraph is added:

"(29) in the version of Federal Law Gazette I no. 92/2014 occur in or out of power: 1. § 20 para 2 to 5, the heading to section I of the 2nd main piece of the 2nd part, article 67 par. 3 and 4, section 68, paragraph 1, section 71a, paragraph 1 and 4, article 82, paragraph 1, second sentence, and article 83 paragraph 3 with expiration of the day of the announcement of this federal law;"

"2. section 7 para 2, § 11, section 12 paragraph 2 and 5, § 17 para 1 and 2, § 18, § 19 para 3 to 5, § 20 paragraph 1a to 5, section 20a, article 31, article 35, paragraph 1, § 57 para 2-4, § 57a, article 58, paragraph 1 last sentence, § 62 para 3 to 5, section 62a, § 63 para 1 last sentence and section 66 Z 1 last sentence with 1 January 2015."

Article 2

Amendment of the code of civil procedure

The code of civil procedure - ZPO, RGBl. No. 113/1895, as last amended by the arbitration Amendment Act 2013, Federal Law Gazette I no. 118/2013, is amended as follows:

The following section and heading is inserted after article 528a:

"Fourth section

Party request for examination of the legality of Ordinances and proclamations of the municipality via the return statement of a law (Treaty), the constitutionality of laws and the legality of international treaties

section 528 b. (1) the conditions and the effect of the application of a party under article 139 paragraph 1 article 140, no. 4, article 139a para 1 subpara 1 lit. d and article 140a B-VG are based on the provisions of the Constitutional Court Act 1953 - VfGG, Federal Law Gazette No. 85/1953. The understanding of the Constitutional Court of the application is to take the process Act and to bring the opponent.

(2) the test is not affected by submitting the of and the decision on the timeliness and admissibility of the appeal raised with the application. By a final rejection of the appeal as belated or otherwise inadmissible and an effective withdrawal of the appeal, the Court immediately to inform the Constitutional Court. Acts, orders or decisions affecting the preliminary liability, legal design effect or enforceability of a decision can be made regardless of the submission or hit.

(3) after receipt of the decision of the Constitutional Court the procedure is immediately officio before the appeal court to continue; It is bound in its decision on the appeal to the decision of the Constitutional Court."

Article 3

Amendment of the Act of except dispute

Except armed law - AußStrG, Federal Law Gazette I no. 111/2003, as last amended by the adult Protection Act, Federal Law Gazette I no. 158/2013, is amended as follows:


1. in the main piece of the table of contents is after the line "8 section: enforcement of decisions" the row "9 section: party request for examination of the legality of Ordinances and proclamations of the municipality via the return statement of a law (Treaty), the constitutionality of laws and the legality of international treaties" inserted.

2nd in the 2nd main piece of the table of contents is following the line "section 2: adoption of a child rather than" the line "2a. "Section: recognition of foreign decisions on the adoption of a child held" inserted.

3. II main piece of the table of contents is not available in the row "section 3: legitimation by the President".

4. II main piece of the table of contents is the line "7 section: regulation of child custody and personal transport between parents and minor children" by the line "7 section: regulation of child custody and the personal contacts" replaced.

5th in the 2nd main piece of the table of contents will be after the line "9 section: procedures on the Sachwalterschaft for persons with disabilities" the line "9a. "Section: recognition, Declaration of enforceability and enforcement of foreign decisions for the protection of the person or of the adult's assets" added.

6. after section 80 the following 9 section including heading shall be inserted:

"9th section

Party request for examination of the legality of Ordinances and proclamations of the municipality via the return statement of a law (Treaty), the constitutionality of laws and the legality of international treaties

§ 80a. (1) § is 528 b code of civil procedure apply by analogy.

"(2) the Court of second instance has pending his curatorship judgments proceedings according to § 283 ABGB, as well as to sections 28, 29 and 38 UbG and in sections 16 and 17, HeimAufG even in the case of the introduction of the application of the party to decide."

Article 4

Amendment of the code of criminal procedure 1975

The code of criminal procedure 1975 - StPO, BGBl. No. 631/1975, as last amended by the law of Criminal Procedure Amendment Act 2014, Federal Law Gazette I no. 71/2014, is amended as follows:

1. According to § 285i, 285j the following section shall be inserted:

"§ 285j. "In the case of an understanding of the Constitutional Court pursuant to §§ 57a subsection 5 first sentence VfGG has first sentence or paragraph 5 62a the Court to proceed according to section 285a and a copy of its decision or one according to § 285 b of taken decision the Constitutional Court to submit and to submit the Court of appeal in the case of a related appeal the understanding of the Constitutional Court, or to let know that no cause of action exists after section 285a."

2 294 paragraph 4 the following sentence is added to §:

"An understanding of the Constitutional Tribunal (section 285j), is the Court of appeal the Chairman has to transmit this decision rejecting."

3. in article 467, par. 5 last half sentence is inserted "to present" the expression - if necessary, VfGG, first sentence, along with §§ 57a subsection 5 first sentence or paragraph 5 62a an understanding of the Constitutional Court according to - before the word.

4. in paragraph 470 Z 1 is the phrase at the end before the second semicolon ", cases in which it has to transmit this decision to the Constitutional Court if necessary," added.

5. § 514 26 the following paragraph is added:

"(26) §§ 285j, 294 paragraph 4, 467 para 5 and 470 No. 1 as amended by Federal Law Gazette I no. 92/2014 with 1 January 2015 into force."

Fischer

Faymann