34. Federal law on the assertion and enforcement of maintenance claims abroad related (foreign Maintenance Act 2014 - AUG-2014)
The National Council has decided: 1. section
Scope of application
§ 1 (1) this Federal Act sets out the procedure for the assertion and enforcement of maintenance claims abroad related. For the area of the European Union's leads the provisions of Regulation (EC) No. 4/2009 on the jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance, OJ From closer L No. 7 of January 10, 2009 (in the following EU maintenance Regulation), p. 1.
(2) the provisions of this federal law shall be without prejudice to claims, the people in a State other than where their habitual residence immediately.
Determination of the central authority
§ 2. To fulfil the tasks arising for central authorities or receiving agencies from the maintenance regulation, from Convention of 20 June 1956 on the recovery of maintenance claims abroad, Federal Law Gazette No. 316/1969 (hereinafter New York maintenance agreement), the Hague Convention of 23 November 2007 on the international recovery of maintenance claims of children and other family members, OJ L No. 192 of July 22, 2011 S. 51 (hereinafter Hague maintenance conventions), and from other similar conventions arise, the Federal Ministry of Justice is determined.
Functions of the central authority
3. (1) the Federal Ministry of Justice has as central authority about the tasks in the regulation of maintenance assigned to it, the other centres to cooperate with authorities, to promote the cooperation of competent courts and authorities to the achievement of the objectives of cross-border maintenance enforcement, and to seek that occur in the application of the relevant legislation as far as possible solutions for difficulties.
(2) the Federal Ministry of Justice operates directly with the positions abroad for it.
Enforcement of maintenance claims
Types of procedure
4. (1) claims arising from maintenance relationships can a person (the applicant) against an other (defendant) after the in this Federal Act claim procedure, if
1. the applicants in the domestic resides and is subject to the jurisdiction of one State respondent, with which reciprocity is guaranteed (para. 3), or the applicant is in such a State resident and the respondent of the domestic jurisdiction is subject to (reciprocity procedures), or 2. this after the maintenance regulation, New York maintenance agreement or the Hague maintenance Convention is envisaged.
(2) applicant in the sense of this federal law is also a place taken out public tasks that you want the refund of a dependent services may claim the refund by the defendant after the law applicable to them. This shall not apply in relation to States, only Contracting States of the New York Convention of maintenance are.
(3) the reciprocity in the sense of paragraph 1 Z 1 is vouched with States in which legislation corresponding to this federal is in place and the Federal Minister of Justice determines this by regulation. The regulation may limit reciprocity if necessary on certain maintenance claims or certain types of maintenance titles. The conditions of the enforcement of maintenance titles, which have been adopted or established in such a State are the sections 80 and 81 EO RGBl. No. 79/1896.
(4) an is maintenance decision, provisionally and subject to confirmation by the requested court is issued by a State with which reciprocity is guaranteed (para. 3), without hearing the defendant, as a request for issuing a decision (§ 6 para 1 Nos. 3 and 4) to evaluate.
(5) States of part of and provinces of federal States are for purposes this federal law States equal to keep if they are responsible for the matters governed by this federal law.
Transmission of applications through central authorities
§ Are 5. Requests under this Federal Act about the central authority of the State in which the applicant resides, to transmit to the central authority of the requested State.
Types of request
6. (1) who maintenance claims in another State will claim, can
1. the recognition or recognition and Declaration of enforceability of decision, 2. the enforcement of a judgment in the requested State or approved by the ruling 3. the issuing of a decision in the requested State, including, insofar as necessary, the establishment of paternity, if in no decision, 4. the issuing of a decision in the requested State, if the recognition and Declaration of enforceability of judgment given in another State is not possible , 5. the change of a judgment given in the requested State or 6 request the amendment of a judgment given in another State.
(2) a person in respect of a maintenance decision exists (debtor), 1 can the recognition of decisions, which led to the suspension or restriction of the enforcement of an earlier decision in the requested State, 2. the change of a judgment given in another State for requesting the change of a judgment given in the requested State, or 3.
§ 7 (1) is at the District Court in whose jurisdiction the applicant has his residence in writing to introduce or to give to log an application abroad. The provisions on the jurisdiction and the procedure of logging depending on the provisions applicable to the procedure except for disputes. As far as the use of a form is prescribed for his contribution, this is to use. It is open to the children and youth welfare support in appropriate cases, to deal directly with the Federal Ministry of Justice.
(2) unless otherwise stated in the provisions referred to in paragraph 4, such a request must contain at least the following information:
1. a statement of the type of application (article 6, para. 1 and 2), 2. the name and the contact details of the applicant, including his address and the date of his birth, 3. the name and, if known, the address and the date of birth of the defendant, 4. the name and the date of birth of each person for whom maintenance is sought, 5. the grounds on which the application is based and 6 information on the account , the maintenance services should be transferred.
(3) the applicant may of his personal address (para 2 subpara 2) if he does represent a legitimate privacy interest and makes designating a representative ad litem, unless the law of the requested Member State does not prescribe that the applicant for the purposes of the proceedings is his personal address.
(4) insofar as this is necessary, the applicant shall also
1. the familiar financial circumstances of the person entitled, 2nd him known financial situation of the debtor, including the name and address of their employer, as well as type and location their assets, and 3 specify the known details of the place of residence of the defendant.
(5) the application include all particulars or written documents be accompanied, where appropriate, documents relating to the proof of claim of the applicant for legal aid.
(6) the petition or inserts a translation into a foreign language are to be provided and the applicant is the granting of legal aid, the Court has to grant legal aid to encourage the production of necessary translations.
Processing of applications in foreign countries
§ 8 (1) if necessary information, explanations or side dishes are missing the application has to urge the Court to improve the applicant, setting a reasonable time limit. He lets r.p.m pass this period, the application of its own motion is to explain as withdrawn. § 17 clause 3 and 4 AußStrG, Federal Law Gazette I no. are 111/2003, apply accordingly.
(2) in proceedings of reciprocity (article 4, paragraph 1 Z 1) has to consider whether in the application and the other documents enclosed circumstances be demonstrated, which can be that a maintenance obligation towards the applicant meets the defendant (article 6 para 1) or an interest of the applicant to a decision in the sense of § 6 par. 2 is closed, the Court and the application in the procedures provided for in the requested State is to treat. On the positive outcome of this examination, the Court has to issue a confirmation and to translate it into an official language of the requested State. Then it has to submit the application together with the to be included in other documents and translations - with three certified copies - immediately to the Federal Ministry of Justice.
(3) the Federal Ministry of Justice is upon receipt of the application to ensure the request covers all documents and information which are necessary for its examination. Then it has to forward the request of the central authority or the contact point of the requested State.
(4) the Federal Ministry of Justice has to track the progress of the proper processing of the application abroad.
Treatment of applications from abroad
9. (1) the Federal Ministry of Justice has all the powers, as a representative of the applicant's law the arising from § 31 para 1 ZPO, RGBl. No. 112/1896,. It has according to § 6 immediately for the assertion of the claim (para. 2 and 3) or for the approval of the execution (para 4) competent court to send the requests received for him.
(2) to an Austrian title of maintenance is to be created, the court competent to perform the procedure has the assistance of a lawyer, in the case of the granting of legal aid of a lawyer for legal aid, to adopt for the purpose of the enforcement of the claim and the representation of the applicant in the proceedings including all subsequent proceedings for the enforcement of the claim (execution including a third debt suit, registration in a proceedings or probate proceedings and the like). The Committee of lawyers is responsible for the selection of a lawyer. The lawyer no proxy is required and is also in cases of legal aid to all in article 31 CCP-led actions and authorized to receive of the alimony. He has the collected sums of money taking into account certain court costs as well as moderate bank transfer charges and in accordance with the relevant foreign exchange regulations to the applicant to pay, provided that the foreign central authority or transmitting Agency has requested no other approach. The applicant the costs of a lawyer to wear, if not the legal aid has been granted to him for the time being. Enter the payments the debtor, not exceeding 25 per cent of these amounts to cover the costs of the representative may be withheld.
(3) can on the basis of the documents the claim without a procedure enforced according to para 2 and 3 in the country are, so the Court permit the execution to the representation of the applicant has the assistance of a lawyer, to decide (para. 2), provided that the applicant not already an appointed lawyer in Germany will intervene earlier in the case of the granting of legal aid for a lawyer for the legal aid.
(4) insofar as this is necessary for the enforcement of maintenance, the Court has to ask the respondent about the origin, to log a possible acknowledgement of paternity, as well as to allow genetic material. If Austrian courts for the establishment of paternity includes the addition of the lawyer of also its authority to represent the applicant in parentage proceedings.
(5) the Court has directly and immediately on the measures taken by him to report on the progress of the proceedings and on whose outcome the Federal Ministry of Justice. The Federal Ministry of Justice may request also the lawyer appointed to represent the applicant to announcement of the procedure stand.
(6) the Federal Ministry of Justice has immediately to inform the requesting central authority or foreign transmitting Agency of the State of play at reasonable time intervals.
§ 10 (1) reciprocity procedures (article 4, paragraph 1 Z 1) the Court has according to § 6 paragraph 1 regardless of an applicant residing abroad on the conditions of § 63 para 1 ZPO to grant provided for him not already previously a lawyer in Germany has been ordered or commissioned the legal aid, including the assistance of a lawyer.
(2) in proceedings about maintenance obligations arising from a parent-child relationship, the Court has a residing abroad subject to § 6 para 1, which still does not has reached age the 21st, without giving regard to its income and financial circumstances legal aid including the assistance of a lawyer, unless he has made the application via the central authority of a Member State of the European Union or a Member State of the Hague maintenance Convention and the request - except in recognition , Vollstreckbarerklärungs - or enforcement proceedings (§ 6 para 1 Nos. 1 and 2)-is not obviously malicious or desperate.
(3) legal aid, or cost and fee waiver has been granted partially or a party in the State, which has been the decision taken, closed court settlement or endorsed or issued the authentic instrument, the Court in recognition -, Vollstreckbarerklärungs - or enforcement proceedings has her (§ 6 para 1 Nos. 1 and 2) without giving regard for the conditions of § 63 para 1 ZPO in an appropriate scope of legal aid.
(4) a political party in the State referred to in paragraph 3 took free proceedings before an administrative authority listed in annex X of regulation of maintenance, the Court in recognition -, Vollstreckbarerklärungs - or enforcement proceedings has her (§ 6 para 1 Nos. 1 and 2) without giving consideration to their income and financial situation and the prospects of its application for legal aid, provided that she submit a document created by the competent authority of the requesting State , which is attested, that it meets the economic conditions wholly or in part in order to be able to take legal aid or cost and fee waiver.
Applications for the grant of legal aid are § 11 (1) in addition to the paragraphs 63 et seq. To evaluate judicial code. The benefits include also the liberation of pay the costs for the Declaration of the debtor (section 302 EO).
(2) on the procedure for the granting of legal aid according to § 10, the §§ 68 are not applicable 71 and 72 (2) and paragraph 2a of the ZPO.
Foreign bodies taken out special provisions for public tasks
§ 12 is a foreign point of growing true public tasks a request and it is represented in the enforcement of maintenance claims from the insertion site at the higher regional court of Vienna, so it requires no proof of authorization.
Immunities and privileges
13. (1) applicants who are not Austrian citizens, are exempt from the requirement for the security deposit for costs in proceedings under this federal law.
(2) provisions, according to which agents or legal representatives for court fees and issuing costs are liable, are not applicable.
(3) for the activities of the Federal Ministry of Justice and for the assertion of maintenance claims at the Court in reciprocity procedures in accordance with §§ 4 para 1 Z 1, 6 para 1 shall be payable either judicial or other fees.
Implementation of special measures
14. (1) appropriate special measures within the meaning of article 51 para 2 lit. b, c, g, h, i and j of the maintenance regulation and of article 6 para 2 lit. b, c, g, h, i and j of the Hague maintenance Convention can also be taken if still no request has been made pending according to § 6. The Federal Ministry of Justice as the requested central authority shall take, where necessary, appropriate measures a prospective applicant in submitting an application pursuant to section 6 or in the decision to assist, whether such an application should be available.
(2) the Federal Ministry of Justice as requested central authority sends the address of the potential defendant in the requested Member State to the requesting central authority. Is specified in the context of a request with regard to the recognition, Declaration of enforceability or enforcement only, whether there is any income or assets of the debtor in Austria.
Information about employment or insurance conditions
Section 15 (1) the Federal Ministry of Justice is to determine of the measures governing the maintenance claim facts, can serve the courts according to sections 102, 103 AußStrG are given.
(2) if the notification of the person concerned from the collection of the information on the transmission of this information carries the risk that compromised the effective recovery of maintenance claims, the notification to not more than 90 days from the day were sent the information of the requested central authority may be postponed.
Transfer of funds
§ 16. Maintenance agreement amounts of money are to meet maintenance payments or to pay the costs of the proceedings after the New York into one to transfer the Convention joined State, cases article 10 of the Convention shall apply.
§ 17. For the execution of a request for assistance, that is provided to the domestic courts and from the itself indicates that it relates to a process instituted at a foreign court, to apply maintenance Convention is on the New York, are otherwise for legal aid services to apply existing rules with the following special features:
1. the requested court in good time to inform the parties receiving or transmitting agency as well as the parties of the time and place the carried out mutual legal assistance act immediately by registered letter.
2. can a request for assistance within a period of four months after its receipt by the requested court be complied with, so is the Federal Ministry of Justice under the reasons to report connection files, if necessary. The Federal Ministry of Justice has to inform the requesting authority thereof.
3. for the execution of a request for assistance, the requested court of the requesting authority may require any fees and costs.
4. mutual legal assistance may be refused only if the authenticity of the request is not fixed or they would endanger sovereignty or State security.
Execution of titles of fraction of
§ 18. The execution of maintenance titles expressing amount to bring in a fraction of the income or otherwise, would be enforceable in the State of origin, but not in Austria, requires a supplementary decision, which numerically sets amount to be in (§ 7 EO).
Transitional and final provisions
19. (1) this federal law 1 August 2014 into force.
(2) this Act does not preclude the application of other agreements or exercises, after which maintenance claims may be asserted.
(3) with 31 July 2014 contact force:
1. the Federal law of January 22, 1969, to the implementation of the Convention of 20 June 1956 on the recovery of maintenance claims abroad, Federal Law Gazette No. 317/1969 in the version of Federal Law Gazette No. 377/1986;
2. the Federal Act of 1 March 1990 for the recovery of maintenance payments in dealings with foreign States (foreign Maintenance Act), Federal Law Gazette No. 160/1990 as amended by Federal Law Gazette I no. 112/2003.
(4) regulations on the basis of in para 3 Z 2 of mentioned foreign Maintenance Act (reciprocal regulations) remain in force and are considered to have been adopted on the basis of this federal law.
(5) in cases where the request is received prior to August 1, 2014, from the central authority, the rules are still the in para 3 No. 2 of said foreign Maintenance Act to apply.
As far as other federal laws are referenced in this Federal Act, these are section 20 (1) in the currently valid version to apply.
(2) as far as the federal laws repealed with para 3 is referenced in federal laws, this is to understand as referring to this Federal Act.
Section 21 (1) with the execution of this Federal Act is, as far as paragraph 2 does not determine otherwise, entrusted to the Federal Minister of Justice, in terms of section 16, in agreement with the Federal Minister of finance.
(2) with the enforcement of article 15 is responsible with regard to the provision by the institutions of the social security system of the Federal Minister for labour, Social Affairs and consumer protection in agreement with the Federal Minister of Justice.
Linguistic equal treatment
section 22. As far as the designations employed in this federal law relating to natural persons, the selected form applies to both sexes.