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Interim and precautionary measures are known collectively as precautionary procedures. Austrian law lays down the following precautionary procedures:
All these precautionary procedures have the common feature that the parties do not have to prove their claims but simply have to prove them, i.e. provide sufficient evidence to the court.
Interim injunctions are the most important of these, which is why the following illustrations are restricted to interim injunctions.
Interim injunctions are court rulings in the form of a decision, by which a future execution is assured or whereby currently prevailing circumstances are specified and maintained for a definite period or the provisional satisfaction of a party’s claim is achieved.
Interim injunctions are further subdivided into the following types:
Interim injunctions are delivered only upon application. The parties are known as the ‘injured party’ and the ‘opponent of the injured party’. Responsibility for delivering an interim injunction rests with
Since the case proceeds according to the regulations of execution law, there is no need for legal representation in first instance hearings.
Where real enforcement acts are to be carried out – as, for example, custody ordered by the court – these are carried out through official channels (by the bailiff). The costs of an interim injunction, which depend on the value of the claim being asserted, must initially be borne by the applicant. The applicant is entitled to reimbursement of costs only when he has succeeded in the main proceedings – this claim to reimbursement is generally made as part of the main proceedings. However, the opponent of the application is entitled to reimbursement of costs at the time of the ruling on the interim injunction if he is successful in the respective hearing.
The necessary condition for delivery of an interim injunction is an application from the injured party, in which
The means of realising a debt are listed taxatively in the Execution Code. These are:
The effects differ according to the type of realisation. The storage and administration of movable physical assets has the effect of removing these items from the direct personal influence of the injured party’s opponent. This means that any rights of disposal over the stored and administered items become in effect void. The law allows the court wide powers of discretion as regards ‘necessary or useful’ dispositions over the items while they are subject to storage and administration to prevent their deterioration leading to loss of value or proceeds. These dispositions can cover, for example, the sale of stored items which are perishable.
Any dispositions over the movable physical items which violate the prohibition on their being disposed of or pledged are void in their entirety.
The court’s third-party prohibition is enforced in that the opponent of the injured party is denied any rights of disposal over the claim he has against this third party and in particular is denied the right to assert the claim. At the same time, an order is addressed to the third party not to pay the opponent of the injured party any sum owed to him until further notice from the court and neither to deliver any items due to him nor to perform any other action which could frustrate or significantly obstruct the execution with regard to the debt or the items which are owed or deliverable. It is therefore allowable to prohibit the third-party debtor only from fulfilling an obligation or from forbearing from the fulfilment, but not allowable to require him to make payments to the injured party or to forbid him to exercise any particular right. Non-compliance by the third party with the prohibition will render him liable to pay damages. However, whether or not rights of disposal of the third party conflicting with the prohibition are in themselves void is not explicitly laid down in law and legal opinion in Austria is divided on this subject.
An administrator appointed and thereafter supervised by the court undertakes the administration of real estate property belonging to the opponent of the injured party.
An entry is made in the Land Register of the fact that the debtor is prohibited from disposing of or encumbering his properties or rights which have been entered in the Land Register. In accordance with this entry, voluntary rights of disposal of the injured party’s opponent over the real estate property or right and the corresponding entries in the Land Register are allowable and realisable but only subject to certain conditions with regard to the injured party. It is only if the injured party’s claim is definitively dismissed by the court or if the interim injunction is otherwise rescinded that the third party comes fully into possession of his rights, including with regard to the injured party and the prohibition can be allowed to lapse.
An interim injunction is enforceable only for a specified period though it can be prolonged upon application of the injured party. If the interim injunction is ordered outside of an investigative hearing, the court must, to allow the suit or execution application to be brought, set a reasonable period in which grounds should be adduced in support of the suit concerning the secured claim. The opponent of the application can stay the enforcement of the injunction and effect the rescission of the injunctions already enforced by lodging a redemption amount.
An interim injunction must be rescinded either upon application or by official channels if
The proceedings leading to the delivery of an interim injunction allow of two legal remedies, which have no delaying effect:
In family law matters, the law covers four particular sets of circumstances:
Amongst these special arrangements for family law matters, special importance is attached to interim injunctions to prevent violence in the family. Since the Prevention of Violence Law came into force on 1 May 1997, there has been in Austria a very efficient and straightforwardly structured system for preventing violence in the family, which enables a violent family member to be excluded from the family and forbidden to return. In particular, the system fosters close co-operation between the police, the family court, the intermediary body for the prevention of violence in the family and – if minors are involved – the youth welfare service.
Policing legislation empowers the forces of law and order to impose an exclusion order or ban on entering certain areas of up to 10 days’ duration if there has been a dangerous attack on life, health or liberty. If an application has been made to the court for an interim injunction, the period is prolonged up to a maximum of 20 days. The police are also obliged to inform the intermediary body so that support can be offered to the person at whom the violence was directed.
Any person whose behaviour towards a close family member makes it unreasonable for cohabitation to continue, whether it be by physical attack, threat of attack or by conduct conducive to the significant impairment of a person’s psychic health, must be ordered by the court, upon application of the injured party,
In addition, the court can ban the excluded person from being in certain specified locations (such as outside the home, outside the child’s school) and can order the said person to refrain from meeting or contacting the applicant provided that some serious interest of the opponent is not thereby violated.
If an interim injunction is delivered in connection with proceedings on the principal case, such as, for example, in connection with divorce proceedings, termination or annulment of the marriage, proceedings for the division of assets or settlement of rights of usage of the marital home, then the interim injunction will apply until the legally definitive conclusion of the main proceedings. An interim injunction can be delivered irrespective of whether or not the parties continue to live together and independently of the main proceedings. However, so long as such proceedings are not pending, the period for which such an injunction can be delivered cannot exceed three months.
If the conditions for doing so are in existence, an interim injunction must be enforced immediately, either upon application or by official channels. In so doing, the enforcement agent/agency (bailiff) must see the opponent of the application out of the dwelling, take from the said opponent all the keys to the dwelling and lodge them with the court. In connection with enforcement of interim injunctions for the prevention of violence in the family, the court can order the law and order agencies to call in the public law and order enforcement services that they have at their disposal. In practice, this is a very frequent occurrence, so that interim injunctions for the prevention of violence in the family are generally not enforced by the bailiff but by the public law and order enforcement services.Top
Last update: 09-10-2006