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Law Experts Attorneys advise and support you as a team. Mag. Gamsjäger and Dr Wiesflecker are dynamic, pro-active Attorneys at law with the necessary experience and extensive special knowledge.
The trial specialists on our team offer you comprehensive and first-class service in court proceedings dealing with matters of national and international dispute. In the framework of a contentious dispute we develop with you the most efficient attacking or defense strategies. Creation of top-notch legal briefs, strategic conduct of negotiations in oral disputes and evidence hearings constitute the special focus of our litigation team. Our goal is to persuade the court that your legal viewpoint is correct.
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Find more information about Civil Proceedings in Austria, Court Proceedings in Austria, Party Statements, Witness Statements, Assessment of Evidence, Civil Proceeding, Complaint/Law Suit, Plaintiff, Defendant, Court, Civil Court, Gathering of Evidence/Evidence-based Proceeding and Judges as follows:
Court Proceedings, Civil Proceedings in Austria
The term “civil proceedings in Austria” refers to legal enforcement options governed by Austrian legislation that are available to plaintiffs to assert so-called civil-law-based claims. This enforcement option, which requires the plaintiff to file a complaint/law suit with a court of law, rules out self-help actions taken by the former. Hence, the plaintiff in Austrian court proceedings files the respective complaint/law suit against the alleged opponent (defendant) with an Austrian court of law.
The demands made in the complaint must have merit based on civil law and, as a consequence, a verdict/ruling may be made as a consequence in a civil proceeding. If the defendant should, for instance, fail to pay the amount set forth in the court order or fail to comply with the verdict (e.g. cease and desist order), Austrian law makes if possible for the prevailing party to initiate a respective court enforcement proceeding aiming at the implementation of this party’s rights.
Austria’s Civil Proceedings Acts, Court Proceedings in Austria, Austrian Courts
Austria’s Civil Proceedings Acts (JN and ZPO) were passed by the legislature in 1895 and 1896 and subsequently became effective. Austrian civil proceedings law is based on the principles of publicity, orality, open assessment of evidence and the expeditiousness of the proceeding.
The appropriate courts of law have jurisdiction over civil law matters. In Austria, the appropriate courts of law are the district courts, the regional courts, superior regional courts and the supreme court.
In pertinent civil proceedings, the individuals making rulings are professional judges, who are government officers appointed by Austria’s Federal President or Federal Minister of Justice. While in office, judges are autonomous and can neither be reassigned nor recalled.
The individuals/entities who appear before an Austrian civil court in a proceeding (civil proceeding) are called “parties.” These are the individuals/entities who participate in a civil trial and demand the clarification of a legal matter. As a rule they are referred to as the plaintiff(s) and the defendant(s).
Complaint/Law Suit in Austrian Civil Proceedings, Court Proceedings in Austria
In Austrian civil proceedings, the plaintiff initiates the proceeding by filing a complaint/law suit. The content of the complaint/law suit also determines the scope of the litigation action. In Austrian court proceedings, the complaint/law suit must meet certain content requirements. For instance, the complaint/law suit must stipulate the fundamental content of the litigation and in particular the aim of the law suit. It is mandatory for the plaintiff to briefly specify the concrete facts of the case the plaintiff’s complaint is based upon. Ideally, relevant evidence should already be presented. The aim of the complaint/law suit is of particular importance. For example, the plaintiff may demand the payment of a specific amount from the defendant in the writ of complaint.
Austria distinguishes between different types of complaints/law suits. One category is the so-called “complaint to compel performance” (Leistungsklage; demand for payment of a specific amount); another the “motion for declaratory action” (Feststellungsklage; this may e.g. result in the ruling that a lease does not exist). Petitions for divorce and other motions are categorized as “legal status amendment complaints” (Rechtsgestaltungsklagen).
If a plaintiff files a complaint/law suit with an Austrian court, the defendant has the right to respond to the complaint. This response to the complaint gives the defendant the opportunity to present his/her perspective of the matter.
Subsequently, the evidence gathering proceeding begins in Austrian civil proceedings. By and large, the evidence gathering process is part of the oral trial before the court. The parties as well as the witnesses are heard during this proceeding. Principally, evidence must be presented before the trial court in Austria.
Party Statements/Interrogations in Austrian Civil Proceedings
In Austrian court proceedings (civil trials), it is not possible to compel the so-called parties (i.e., as a rule, plaintiff(s) and defendant(s)) to appear at the trial or to make statements, although they principally have the obligation to appear, to make statements and to be sworn in (to make statements under oath). Contrary to witnesses to be questioned in an Austrian civil proceeding, they are not subject to sanctions if they fail to appear or refuse to make statements (§ 380 Sect. 3 ZPO). However, the court may, at its discretion, take the conduct of a party into account as part of the open assessment of evidence that applies in Austrian civil proceedings law.
It is important to remember that all parties, just like the witnesses, are mandated to tell the truth by Austrian civil law. The difference between witnesses and parties is that a party is subject to criminal prosecution for a false statement pursuant to Art. 288 StGB (Austrian Criminal Code) only if the party has been placed under oath before making the statement.
Witness Statements/Interrogations in Austrian Civil Proceedings
In Austrian civil proceedings, the judge interrogates the witnesses. However, the parties also have the right to question witnesses. The judge has the authority to deny the posing of inappropriate questions (Art. 289 Sect. 1 ZPO). Principally, no separate legal remedies are available if a question is denied. The witness must make truthful statements as he or she is otherwise subject to criminal prosecution pursuant to Art. 288.
Assessment of Evidence in Austrian Court Proceedings
Principally, Austria’s Civil Proceedings Code knows four types of evidence: Records/documentation, witnesses, experts, eyewitness statements and party statements made in response to questioning. The rule of law is that in Austrian civil proceedings, all types of evidence may be used and assessed that are helpful in determining the truth.
Austrian court proceedings are governed by the principle of open evidence assessment. This means that the court, when assessing the evidence, is not bound by fixed rules in Austrian civil proceedings. Hence, one type of evidence is principally not “superior” to another category and having more evidence does not necessarily mean that the evidence is more compelling.
Consequently, in Austrian civil proceedings, judges are mandated to make their decisions as to which statements they find truthful based on what evidence based on their own free, personal convictions. Hence, in Austrian civil proceedings, the court is fully responsible for determining the truth. The upside of this is that the courts make highly flexible decisions in Austrian court proceedings and that they are able to take the unique scenarios of each individual case into account. The downside is that the outcome of the assessment of evidence by the judge is frequently almost impossible to predict.
Principally, each party bears the burden of proof for its own statements or allegations. For instance, anyone who raises the allegation that the structure of a building is deficient in an Austrian court proceeding has to prove the structure’s deficiency. A reversal of the burden of proof as a matter of law is only possible in certain cases.
Announcement of the Verdict/Ruling in Austrian Civil Proceedings
If at all possible, the verdict/ruling in Austrian civil proceedings must be announced at the end of the oral trial (§ 414 Sect. 1 ZPO). The grounds for the ruling must also be announced if an oral trial was conducted. The announcements may also be made in the absence of both parties. The cost ruling may be reserved for announcement in the written notification (§ 414 Sect. 2 ZPO). The deadline for the filing of legal resource is four weeks after the ruling/verdict was served.
Cost Reimbursement in Austrian Civil Proceedings
The fully prevailing party, i.e. the party whose claims are 100% affirmed by the court’s ruling/verdict (plaintiff or defendant) is always entitled to the full reimbursement of its expenses (§ 41 Sect. 1 ZPO). To claim the costs of the proceeding, this party must present the list of costs incurred after the declaration of the trial’s conclusion. The late presentation of the list of costs incurred results in the forfeiture of the entitlement to cost reimbursement (§ 52 Sect. 3 ZPO).
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