Summary
Highlights
The constitutional foundations of civil procedure law are discussed, centering on Article 6 of the European Convention on Human Rights (EMRK), which guarantees a fair trial and holds constitutional rank in Austria. This article covers aspects like the right to be heard and procedural speed. National constitutional provisions, such as Article 18 B-VG (legality principle) and Article 82 B-VG (federal jurisdiction over ordinary courts), reinforce these principles. Critically, Articles 87 and beyond B-VG establish the independence of judges, protecting them from instructions, removal, or transfer, which is seen as crucial for maintaining public trust in the judiciary. This independence is safeguarded to prevent undue influence on judicial decisions. The "right to the statutory judge" (Recht auf den gesetzlichen Richter) ensures that judicial assignments are fixed in advance, preventing manipulation of who hears a case.
The relationship between the Supreme Court (OGH) and the Constitutional Court (VfGH) is discussed, noting a historical shift towards increased interaction. While the OGH traditionally did not favor direct appeals to the VfGH against its judgments, a new mechanism introduced in 2015 allows parties to challenge the constitutionality of a law applied in a first-instance court's decision, via an appeal. This 'Gesetzesbeschwerde' or party application for normative review means that the VfGH primarily reviews the law itself, not the court's judgment. This compromise addresses concerns about the VfGH becoming a 'super revision instance' while ensuring constitutional oversight. The discussion also touches upon the implications of this for civil law, where the VfGH's rulings on laws can significantly influence how civil law is understood and applied, potentially fostering a stronger constitutional dimension in civil jurisprudence.
The conversation shifts to fundamental procedural principles (Prozessgrundsätze) within the civil procedure. The "disposition principle" (Dispositionsgrundsatz) states that legal protection is not automatically provided; parties must initiate and drive the process (e.g., filing a complaint, settling, or seeking execution). This principle limits the court's power to what the parties have requested. The "publicity principle" (Öffentlichkeitsgrundsatz), enshrined in both constitutional and procedural law, mandates that court hearings be open to the public. While seemingly trivial today, this serves a crucial control function, ensuring transparency and preventing secret dealings. Lastly, the "orality principle" (Mündlichkeitsgrundsatz) dictates that proceedings should be conducted orally, although in practice, extensive written submissions often precede or supplement oral arguments. The challenge for legal professionals is to maintain clarity and focus in oral proceedings despite extensive written materials.
The "immediacy principle" (Unmittelbarkeitsgrundsatz) requires that the judge making a decision directly perceives the evidence. This means the judge hears witnesses and assesses evidence firsthand, rather than relying solely on written protocols. If a judge changes during a trial, this principle theoretically demands a re-hearing of previously presented evidence. In practice, however, procedural workarounds (formal decrees) often circumvent full re-hearings to avoid delays, though parties retain the right to demand a complete repeat if they believe it compromises their case. The instructors also introduce the concept of "free evidentiary assessment" (freie Beweiswürdigung). This means judges are not bound by strict rules of evidence (e.g., requiring a certain number of witnesses) but can evaluate a witness's credibility based on their direct impression. This extensive power of the first-instance judge is a key reason why challenging factual findings on appeal is difficult, as higher courts did not have the direct impression of the evidence.
The instructors welcome students to the first unit of the Civil Procedure Law course for the summer semester 2021. They introduce Dr. Alexander Bilfinger and outline the course structure, mentioning four coordinated tracks, three managed by the main lecturer's chair and one by Professor Imre. They discuss the 360-degree approach for the semester, which prioritizes online learning but may include optional in-person activities if possible. Live streams are held on Tuesdays at 9 AM, with no mandatory attendance, allowing for on-demand viewing, though active participation in live sessions is encouraged to avoid falling behind. Mandatory attendance is required for track-specific practical exercise units starting the following day, where cases will be discussed in depth. Preparation for these units involves reviewing materials available on the learning platform.
The grading in this semester includes a 'Mitarbeit-Ersatzleistung' (participation substitute) in the form of a homework assignment, accounting for 10% of the grade. This assignment, to be completed in April, requires students to create an exercise case with a sample solution on a given topic. The remaining 90% of the grade comes from two exams, each contributing 45%, scheduled for May 15th and June 5th, both Saturdays, and planned as in-person exams on campus. If in-person exams are not possible, they will be held online, possibly on the following Monday. Students are advised to use the newly released fifth edition of Georg Kodek's textbook on civil procedure law and a current legal code. Proactive learning from the start is highly recommended due to the complexity and volume of material. The instructors acknowledge the historically high failure rates in civil procedure law and emphasize that the new concept with breakout sessions aims to provide better support.
The instructors clarify that the course focuses on the science of civil procedure law, distinguishing it from practical process handling. Practical aspects like court etiquette or document numbering are learned in practice, not in academia. The course emphasizes understanding underlying concepts and legal-technical considerations rather than rote memorization. It acknowledges that some procedural rules are simply arbitrary decisions by the legislator (e.g., appeal deadlines), while others reflect deep jurisprudential concepts. The psychological and social dynamics of trials are also acknowledged as important but best learned through live experience, with instructors sharing anecdotes rather than exhaustive training.
The scope of civil procedure law is discussed, noting its various sub-disciplines including execution law and insolvency law (covered in separate courses). The main focus will be on typical civil litigation (Zivilprozessrecht) as outlined in the ZPO, with occasional references to other areas like labor and social court procedures. The course also incorporates European Union law, particularly regarding jurisdiction and enforcement. A significant theme is that civil procedure, though essential for enforcing rights, is often considered a 'social evil' (Franz Klein's view), leading to efforts to resolve disputes outside of court. This is reflected in the emphasis on alternative dispute resolution methods like mediation and conciliation, where parties are encouraged to reach an agreement without judicial intervention. Arbitration is noted as a distinct form where an arbitral tribunal issues a binding decision.
The discussion covers cases where mediation or conciliation is obligatory before resorting to court. Examples include disputes arising from club memberships (Vereinsgesetz), professional disagreements among auditors (Wirtschaftstreuhänder-Kammergesetz), and tenant-landlord disputes in specific municipalities, particularly in Vienna's altbau properties. The legal consequence of bypassing these mandatory preliminary steps is the dismissal of the lawsuit due to inadmissibility. While these mechanisms aim to provide accessible and specialized dispute resolution, concerns are raised about ensuring professionalism and preventing unfair pressure on parties. The focus on consensual solutions, while generally positive, also carries risks if power imbalances or lack of legal knowledge exist between parties, potentially leading to disadvantageous agreements.
The fundamental right to access state-organized legal enforcement is emphasized, highlighting the civil procedure as a core function of the state. While alternative dispute resolution is valued, access to court must not be unduly difficult. The German Federal Constitutional Court's view that consensual solutions are generally preferable to judicial decisions is quoted, but tempered with the reminder that the court system serves to ensure justice when private autonomy fails. Within the court system, Paragraph 433 ZPO allows parties to seek a pre-trial settlement (Prätorischer Vergleich) before the district court, offering a neutral forum and a judge-mediated discussion. Paragraphs 204 and 258 ZPO further mandate judges to encourage settlements at all stages of the proceedings, particularly in early preparatory hearings. This reflects a historical understanding that litigation is a 'social evil' to be avoided or minimized, a concept central to Austrian civil procedure law.