Foreign Maintenance Act 2014 - Aug-2014

Original Language Title: Auslandsunterhaltsgesetz 2014 – AUG 2014

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34. Federal law on the assertion and enforcement of maintenance claims with a foreign reference (Foreign maintenance law 2014-AUG 2014)

The National Council has decided:

Section 1

General

Scope

§ 1. (1) This federal law regulates the procedure for the assertion and enforcement of maintenance claims with a foreign reference. In the field of the European Union, the provisions of Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 145, 31.5.2009, p. L No 7 of 10 Jänner 2009 p. 1 (hereinafter referred to as the EU Maintenance Regulation), closer.

(2) The provisions of this Federal Act shall be without prejudice to applications which directly place persons in a State other than that of their habitual residence.

Determination of the Central Authority

§ 2. In order to carry out the tasks relating to the central authorities or receiving bodies from the EU maintenance regulation, the Convention of 20 June 1956 on the assertion of maintenance claims abroad, BGBl. No 316/1969 (hereinafter referred to as the New York Maintenance Convention), the Hague Convention of 23 November 2007 on the international enforcement of the maintenance rights of children and other family members, OJ L 327, 30.12.2007, p. 51 (hereinafter referred to as the Hague Convention), and other comparable agreements, the Federal Ministry of Justice is determined.

Tasks of the Central Authority

§ 3. (1) The Federal Ministry of Justice, as the Central Authority, has to cooperate with the other Central Authorities in addition to the tasks assigned to it in the EU Maintenance Regulation, to cooperate with the competent courts and authorities. To promote the achievement of the objectives of transboundary maintenance enforcement and to seek as far as possible solutions to difficulties encountered in the application of the relevant legislation.

(2) The Federal Ministry of Justice is directly responsible for the services provided abroad for this purpose.

Section 2

Enforcement of maintenance claims

Types of procedure

§ 4. (1) Claims arising from maintenance relationships may be invoked by one person (applicant) against another (defendant) in accordance with the procedure laid down in this Federal Law, if:

1.

the applicant is in the national territory and the respondent is subject to the jurisdiction of a State with which reciprocity is guaranteed (paragraph 1). 3), or the applicant stays in such a state and is subject to the defendant of domestic jurisdiction (reciprocity procedure), or

2.

this is provided for under the EU maintenance regulation, the New York maintenance convention or the Hague Maintenance Convention.

(2) Applicants within the meaning of this Federal Act are also a public service representative body which desires the reimbursement of the benefits provided to a dependant if it is entitled to a refund in accordance with the law applicable to them. request from the defendant. This shall not apply in relation to States which are exclusively States Parties to the New York Maintenance Convention.

(3) The reciprocity in the meaning of paragraph 1 Z 1 is guaranteed by states in which a legal provision corresponding to this federal law is in force and the Federal Minister of Justice determines this by regulation. The Regulation may, where appropriate, restrict reciprocity to certain maintenance claims or to certain types of maintenance titles. The conditions for the execution of maintenance titles issued or established in such a state are subject to the provisions of § § 80 and 81 EO, RGBl. No 79/1896.

(4) An maintenance decision in a state with which reciprocity is guaranteed (paragraph 1). 3), without hearing the respondent provisionally and subject to confirmation by the requested court, is to be considered as a request for the release of a decision (§ 6 para. 1 Z 3 and 4).

(5) States and provinces of states are to be considered states for the purposes of this federal law if they are responsible for matters governed by this Federal Law.

Transmission of applications via the Central Authorities

§ 5. Applications under this Federal Act shall be submitted to the Central Authority of the requested State through the Central Authority of the State in which the applicant is to be held.

Application Types

§ 6. (1) If you wish to assert maintenance claims in another State, you may:

1.

the recognition or recognition and enforceable declaration of a decision;

2.

the execution of a decision taken or recognised in the requested State,

3.

the absence of a decision in the requested State, including, where necessary, the determination of the descent if no decision has yet been taken,

4.

the release of a decision in the requested State if the recognition and enforceable declaration of a decision taken in another State is not possible,

5.

the modification of a decision taken in the requested State, or

6.

the modification of a decision taken in another State

apply.

(2) A person who is subject to a maintenance decision (obligated person) may

1.

the recognition of a decision to suspend or restrict the execution of an earlier decision in the requested State;

2.

the modification of a decision taken in the requested State, or

3.

the modification of a decision taken in another State

apply.

Application requirements

§ 7. (1) An application abroad shall be submitted to the District Court in which the applicant has his/her stay, to be submitted in writing or to be recorded in the minutes. The rules on jurisdiction and the procedure for logging shall be governed by the provisions applicable to the proceedings in addition to disputes. To the extent that the use of a form is required for its introduction, it shall be used. In appropriate cases, the children's and youth welfare authorities will be open to the Federal Ministry of Justice in appropriate cases.

(2) If nothing else arises from the provisions referred to in § 4, such a request shall contain at least the following information:

1.

a declaration on the nature of the application (Article 6 (1) and (2));

2.

the name and contact details of the applicant, including his address and date of birth;

3.

the name and, if known, the address and the date of birth of the defendant,

4.

the name and date of birth of each person for which maintenance is required;

5.

the reasons on which the application is based and

6.

Information about the account to be transferred to maintenance services.

(3) The applicant may indicate his/her personal address (paragraph 1). 2 (2) if he/she is responsible for a legitimate interest in confidentiality and makes a name for an authorised representative, provided that the law of the requested Member State does not require that the applicant for the purposes of the procedure be personal address.

(4) As far as is necessary, the applicant shall also:

1.

the financial circumstances known to him by the authorized person,

2.

the financial circumstances known to him, including the name and address of their employer, as well as the nature and location of their assets, and

3.

the information known to him about the defendant's whereabout

.

(5) The application shall be accompanied by all necessary information or written documents, including, where appropriate, documents proving the applicant's claim to legal aid.

(6) Where the application or supplements are to be translated into a foreign language and the applicant requests the authorization of the procedural aid, the court shall, after the authorization of the aid, have the necessary To arrange translations.

Treatment of applications in foreign countries

§ 8. (1) In the absence of any necessary information, declarations or supplements to the application, the Court of First Instance shall require the applicant to improve it by setting a reasonable period of time. If the time limit is not protected, the application shall be declared withdrawn by its own motion. § 17 sentence 3 and 4 of the External Strg Act, BGBl. I n ° 111/2003, shall apply mutatily.

(2) In the case of reciprocity proceedings (Section 4 (1) (1)), the Court of First Instance has to examine whether, in the application and the other documents enclosed, circumstances are to be made which can be used to conclude that the defendant is subject to maintenance obligations. (§ 6 (1)) or an interest of the applicant in a decision within the meaning of § 6 (2), and the application is therefore to be dealt with in the procedure provided for in the requested State. The Court of First Instance has to issue a confirmation of the positive outcome of this examination and to have it translated into an official language of the requested State. Subsequently, it has to submit the application together with the other documents and translations-with three certified copies each-directly to the Federal Ministry of Justice.

(3) The Federal Ministry of Justice shall, after having received the request, ensure that the application includes all the documents and particulars necessary for its examination. It shall then forward the request to the Central Authority or the receiving authority of the requested State.

(4) The Federal Ministry of Justice has to pursue the progress of the proper execution of the application abroad.

Treatment of applications from abroad

§ 9. (1) The Federal Ministry of Justice, as the representative of the applicant, has all the powers conferred on it by Section 31 (1) ZPO, RGBl. No 112/1896. In accordance with § 6, it shall immediately apply the applications submitted to it for the purpose of asserting the claim (paragraph 1). 2 and 3) or for the approval of the execution (para. 4) to be sent to the competent court.

(2) If an Austrian maintenance title is to be created, the court responsible for carrying out the proceedings shall have the condolce of a lawyer, in the case of the authorization of a lawyer for procedural assistance, on the basis of the following: Purpose of asserting the claim and representation of the applicant in the proceedings, including all subsequent procedures for the enforcement of the claim (execution including a third-party education system, filing in a (c) to adopt insolvency proceedings or abandonship proceedings and the like). The selection of the lawyer is the responsibility of the Committee of the Bar Association. The attorney does not require any power of attorney and is authorized, even in cases of procedural assistance, to all the process actions referred to in § 31 ZPO and to receive the maintenance payments. The amount of funds collected shall be transferred to the applicant, taking into account the costs of the court and the bank transfer charges, and in compliance with the relevant provisions of the law on the application of the funds, provided that the Foreign Central Authority or transmitting agency has not requested any other procedure. The applicant shall bear the costs of the lawyer on a provisional basis, provided that he has not been granted the assistance of the proceedings. If the debtor's payments are made, a maximum of 25% of these amounts may be withheld to cover the costs of the representative.

(3) If, on the basis of the documents, the claim can be carried out domestily without carrying out a procedure pursuant to para. 2 and 3, the court responsible for the authorization of the execution of the execution shall have to represent the applicant for a Lawyer, in the case of the authorisation of the procedural assistance of a lawyer, to decide on procedural assistance (para. 2) provided that the applicant does not already have an attorney who has been ordered at an earlier stage in the country.

(4) As far as this is necessary for maintenance enforcement, the court has to question the defendant of the descent, to log an all-due recognition of paternity, as well as to enable the procurement of genetic material. If Austrian courts are responsible for the determination of descent, the advising of the lawyer shall also include its power to represent the applicant in a descent procedure.

(5) The General Court shall report directly and without delay to the Federal Ministry of Justice on the measures it has taken, on the progress of the proceedings and on the outcome thereof. The Federal Ministry of Justice can also ask the lawyer appointed to represent the applicant for the announcement of the procedural status.

(6) The Federal Ministry of Justice shall immediately notify the requesting Central Authority or the foreign transmission agency of the status of the proceedings at appropriate intervals.

Procedural assistance

§ 10. (1) In the case of reciprocity proceedings (Section 4 (1) (1)), the Court of First Instance has, in accordance with Section 6 (1), the procedural assistance, including the forgiveness of a lawyer, in accordance with Section 6 (1), without regard to the conditions of Section 63 (1) of the ZPO. if an attorney has not already been appointed or charged at an earlier date in the country.

(2) In proceedings relating to maintenance obligations arising from a parent-child relationship, the court has an applicant who is resident abroad in accordance with § 6 (1), who is the 21-year-old. It has not yet been completed, without regard to its income and wealth situation, to grant procedural assistance, including the advising of a lawyer, provided that the application is made via the Central Authority of a Member State of the The European Union or a State Party of the Hague has filed a maintenance agreement and the application, except in recognition, enforceability or enforcement proceedings (Article 6 (1) (1) and (2)), does not appear to be presumed to be wilful or is hopeless.

(3) If a party is in the State in which the decision has been taken, the court settlement has been closed or approved, or the public document has been issued, in whole or in part, legal aid or cost-and The court in recognition, enforceability or enforcement proceedings (Section 6 (1) Z 1 and 2) without regard to the conditions of § 63 (1) ZPO has been granted to the Court of First Instance in accordance with the requirements of Section 63 (1) of the German Civil Code (ZPO). .

(4) Where a party has claimed, in the State referred to in paragraph 3, a free procedure prior to an administrative authority listed in Annex X to the EU maintenance regulation, the party shall have the court in recognition, enforceability and enforcement of the law or enforcement proceedings (§ 6 (1) (1) and (2)) without regard to their income and property conditions and the prospects of their application for procedural assistance provided that they have been drawn up by the competent authority of the requesting State the document certifying that it is the economic The conditions are fulfilled in order to be able to take advantage of all or part of legal aid or costs and fees.

§ 11. (1) In addition, applications for the authorization of the procedural aid in accordance with § § 63 et seq. ZPO. The benefits shall also include exemption from the cost of the declaration of the third party debtor (§ 302 EO).

(2) § § § 68, 71 and 72 (2) and (2a) of the ZPO are not applicable to procedures for the granting of procedural assistance in accordance with § 10.

Special rules for foreign bodies performing public tasks

§ 12. If a foreign body perceives a public service request and if it is represented in the enforcement of the maintenance claim by the placement office at the Higher Regional Court of Vienna, there is no need to provide proof of a Empower.

Exemptions and benefits

§ 13. (1) Applicants who are not Austrian nationals are exempted from the obligation to provide security for process costs in accordance with this Federal Act.

(2) Provisions according to which authorised agents or legal representatives shall be liable for court fees and expenses shall not be applied.

(3) For the activities of the Federal Ministry of Justice and for the assertion of the maintenance claim in the court in reciprocity proceedings in accordance with § § 4 (1) Z 1, 6 (1), neither court nor any other fees are to be paid.

Section 3

Additional provisions

Implementation of specific measures

§ 14. (1) Measures of special interest within the meaning of Article 51 (2) (b), (c), (g), (h), (i) and (j) of the EU Maintenance Regulation and of Article 6 (2) (b), (c), (g), (h), (i) and (j) of the Hague Maintenance Convention may also be taken if no application has yet been submitted has been made pursuant to § 6. The Federal Ministry of Justice as the requested Central Authority shall, if necessary, take appropriate measures to assist a prospective applicant in the submission of an application pursuant to § 6 or in the decision whether such a Application should be made.

(2) The Federal Ministry of Justice as the requested Central Authority shall transmit the address of the potential defendant in the requested Member State to the requesting Central Authority. In the context of a request for recognition, the declaration of enforceability or the execution, it is only indicated whether there is any income or assets of the person under obligation in Austria at all.

Information on employment or insurance relationships

§ 15. (1) The Federal Ministry of Justice is entitled to use the facts of the measures applicable to the maintenance claim, which are granted to the courts in accordance with § § 102, 103 of the External Strings Act (§ § 102, 103).

(2) Where the notification of the person concerned by the collection of the information concerning the transmission of such information is liable to affect the effective assertion of the right to maintenance, the Notification shall be postponed for a maximum of 90 days from the day on which the information of the requested Central Authority has been transmitted.

Transfer of funds

§ 16. If, in order to meet maintenance claims or the payment of procedural costs under the New York Maintenance Convention, monetary amounts are to be transferred into a State belonging to the Convention, Article 10 of this Convention shall be deemed to be the same.

Requests for legal assistance

§ 17. For the execution of a legal assistance request made to a national court, which results from the fact that it concerns a procedure initiated by a foreign court to which the New York maintenance convention applies , the rules which are otherwise applicable to the mutual legal assistance shall be subject to the following specific features:

1.

The requested court shall inform the receiving or transmitting agency involved and the parties of the time and place of the legal assistance to be carried out immediately, with the letter registered, in good time.

2.

If a request for legal assistance cannot be complied with within four months of its arrival in the requested court, the Federal Ministry of Justice shall be reported under the guidance of the reasons, where appropriate following the file's files. The Federal Ministry of Justice has to agree to the applicant authority.

3.

In order to obtain a request for legal assistance, the requested court shall not require the applicant authority to charge any fees or charges.

4.

Legal assistance can only be refused if the authenticity of the request is not established or if it endangers the sovereign rights or the state security.

Execution of fractions of fraterel

§ 18. For the execution of maintenance titles which express the amount to be paid by a fraction of the income or otherwise, which would be enforceable in the country of origin but not in Austria, a supplementary Decision which sets the amount to be paid (§ 7 EO).

Transitional and final provisions

§ 19. (1) This federal law shall enter into force on 1 August 2014.

(2) This federal law does not exclude the application of other intergovernmental agreements or exercises according to which maintenance claims can be asserted.

(3) With effect from 31 July 2014:

1.

the Federal Act of 22. Jänner 1969 on the implementation of the Convention of 20 June 1956 on the assertion of maintenance claims abroad, BGBl No. 317/1969 in the version of the Federal Law BGBl. No 377/1986;

2.

The Federal Act of 1 March 1990 on the assertion of maintenance claims in the transport with foreign states (foreign maintenance law), Federal Law Gazette No. 160/1990 in the version of the Federal Law BGBl. I No 112/2003.

(4) Regulations on the basis of the foreign maintenance law (reciprocity regulations) referred to in paragraph 3 (2) remain in force and shall be deemed to have been adopted on the basis of this Federal Law.

(5) For cases in which the request has been received by the Central Authority before 1 August 2014, the provisions of the foreign maintenance law referred to in paragraph 3 (Z) (2) shall continue to apply.

§ 20. (1) As far as other federal laws are referred to in this Federal Act, these are to be applied in the respectively applicable version.

(2) Where reference is made in federal laws to the federal laws repealed with paragraph 3, this is to be understood as a referral to this federal law.

§ 21. (1) With the enforcement of this Federal Act, the Federal Minister of Justice is entrusted with the task of the Federal Minister of Finance in agreement with the Federal Minister for Justice, insofar as the second paragraph of this article is not otherwise determined.

(2) With the enforcement of § 15, the Federal Minister of Labour, Social Affairs and Consumer Protection, in agreement with the Federal Minister for Justice, is responsible for the exchange of information by the carriers of the social security system.

Linguistic equality

§ 22. In so far as the names used in this Federal Act refer to natural persons, the chosen form shall apply to both sexes.

Fischer

Faymann