General Conditions of Litigation in Civil Procedure
The conditions of the case are the conditions, the presence or absence of which are necessary for the examination of the merits of the case and the provision of a judgment on the merits, in other words, for the acceptance of the case. Evidence, events or facts submitted to the case file and seen ex officio by the judge during the opening of the case, requiring the dismissal of the case due to the absence of the conditions of the case, or the Parties may assert their absence at each stage of the case.
In the doctrine, the conditions that must be present in order for the merits of the case to be examined, that is, for the acceptance of the case, are called positive litigation conditions (for example, the existence of a legal interest), while the conditions that must be present in the case are called positive litigation conditions. the orders issued for the acceptance of the case are called adverse litigation conditions (for example, the fact that the same case has been filed before and there is currently no derdest, in other words, there is no derdest situation).
General Conditions of the Case
In principle, the general case conditions listed in paragraph 1 of Article 114 of the Code of Civil Procedure No. 6100, which applies to all cases, are as follows:
The Jurisdiction of the Turkish Courts (CMK m. 114/1-a):
The jurisdiction of the Turkish courts, in other words, the jurisdiction of the Turkish courts is limited to the country, person and subject of the sovereignty-related dispute. Cases related to persons and dispute issues that are not subject to Turkish jurisdiction should be rejected because there is no cause of action.
Judicial immunity is not granted to a foreign state in matters arising from private legal relations. In such disputes, the diplomatic representatives of the foreign state in Turkey may be notified (KVKK m. 49).
According to the Vienna Convention on Diplomatic Relations dated 18.04.1961, to which Turkey became a party by Law No. 3402 dated 04.09.1984, diplomatic representatives have full exemption from criminal jurisdiction (Article 31/1 of the Vienna Convention). Diplomatic representatives in Turkey are also included, except in the following cases (31 of the Vienna Convention. Article) is exempt from legal and administrative actions.
A lawsuit filed by a diplomatic representative in Turkey for an in-kind right to private immovable property located in Turkey; provided that such immovable property is not in the savings of the diplomatic representative on behalf of the sending State and for the specified purposes. Mission,
Cases related to inheritance in which diplomatic representatives act as a private person in the capacity of guardian, administrator, heir or guardian of the will, and not on behalf of the sending State,
Cases related to any professional or commercial activity carried out by a diplomatic representative in Turkey outside of his official duties.
except as provided in paragraphs (a), (b) and (c), no sanction measures may be taken against the diplomatic representative. Even in this case, the inviolability of the person or residence of the representative may not be violated (art. 31/3). However, exemption from the jurisdiction of the receiving State does not exempt the diplomatic representative from the jurisdiction of the sending State (Article 31/4 of the Vienna Convention).
On the other hand, there is no obligation for a diplomatic representative to testify (Vienna Convention art. 31/2), but the diplomatic representative may, at his own request, appear before the court and testify. Those who benefit from judicial immunity may file a lawsuit in Turkish courts and intervene in a case that has been opened. If a lawsuit is filed in this way, a lawsuit may be filed against these persons (without exemption in accordance with the principle of reciprocity).
Judgment (CMK m. 114/1-b)
114 of the CMK No. 6100 entitled “Conditions of the case”. in paragraph b of article, the permissibility of the judicial route is regulated before the jurisdiction of the courts. Therefore, first of all, it is necessary to assess whether the court is competent in terms of duty, because in order for a civil court to hear a case, this case must be a case that falls within the scope of its jurisdiction. A case that falls within the scope of the administrative judiciary’s duty cannot be tried in judicial proceedings. For example, if an administrative case is filed in a civil court, the defendant may file an appeal for jurisdiction until the end of the administrative trial.
The Authority of the Court (CMK m. 114/1-c)
In order for the court to enter into the merits of the case, it must be authorized to hear the case. Since the rules of duty are related to public order, they can be taken into account ex officio at every stage of the case, as well as put forward by the parties to the case (CMK m. 1-4).
Absolute Jurisdiction (CMK m. 114/1-o)
The judgment is not a matter of public order, but can be taken into account if the parties put forward. However, final authority, like authority, is a condition of the case, relates to public order and must be taken into account ex officio and can be put forward by the parties at any stage of the case. For this reason, in cases with absolute authority, the case must be opened in an absolute competent court. Otherwise, the court must make a decision of dereliction of duty on its own.
Determination of the Parties (CMK m. 114/1-d)
The designation of a party means that the plaintiff and defendant parties in a case are fully represented in court, are summoned to court and are fully present in court. As a rule, there must be two parties (plaintiff and defendant) who disagree with each other in a case. Non-contentious trial (CMK m. 382) is an exception to this rule.
According to the Court of Cassation, even if the decision of the court of first instance is overturned by the Court of Cassation, the decision to overturn and the date of the hearing should be notified to the parties spontaneously and party organization should be ensured.[ 1]
The Party and the License of the Case (CMK m. 114/1-d)
In order for the case to be examined on the merits, the parties must have a party and trial license, and in cases where legal representation is in question, an attorney must be present. to have the necessary qualifications. These issues are taken into consideration as a condition of the case by themselves.
The Authority to File a Lawsuit (CMK m. 114/1-e)
The authority to file a lawsuit is the authority of a person to pursue the case personally or to have it pursued through a proxy that he will appoint. In the cases specified in the laws, the person must have the authority to pursue the case in order to be able to file a lawsuit and take procedural actions. The right to file a lawsuit is a condition of the case and should be taken into account ex officio.
Power of Attorney and Valid Power of Attorney (CMK Md. 114/1-f)
In the cases pursued through the proxy, the proxy must have a power of attorney license and have a duly issued power of attorney. Divorce, name change, disinheritance, etc. it cannot open and pursue lawsuits related to these rights unless it is explained that the person has been granted power of attorney for closely related rights (Article 74). Of the CCP).
Since the absence of explicit authority in the power of attorney is a deficiency that can be completed, 115 of the CMK. in accordance with article 115 of the power of attorney, granting a certain period of time for the completion of the deficiency. if it is in accordance with the article, it must be given a certain period of time. If Article 74 of the CMC is submitted within the given time, the case must be processed on its merits, otherwise the case must be dismissed on its merits.[2]
Payment of an Advance Payment of Expenses by the Plaintiff (CMK Md. 114/1-g)
In order to proceed to the merits of the case, the plaintiff must have deposited the cost advance. CMK’s 120. according to the article, the plaintiff is obliged to deposit the trial fees and the amount to be determined in the expense advance tariff published by the Ministry of Justice every year to the court teller when filing a lawsuit. If it is understood that the advance is not sufficient during the case, the court will give the plaintiff a fixed period of two weeks to complete this deficiency. If the deficiency is not completed within this period, the case will be rejected in terms of procedure.
However, the expense advance and CMK’s 324. the article reads as follows: “(1) Each of the parties is obliged to deposit the advance determined by the court for the evidence requested by the court within the given period. If the parties jointly request the submission of the same evidence, they will pay half of the necessary expenses in advance. (2) In case one of the parties fails to fulfill the advance obligation, the other party may deposit this advance. Otherwise, the presentation of the requested evidence will be deemed to have been abandoned …”.
The Court of Cassation, in a decision, in an ongoing case, 324 of the CMK. in accordance with the article, notification expenses, witness expenses, exploration and expert expenses, etc. he stated that an advance of evidence may be requested for it. the expenses that are the condition of the case will not be accepted as an advance, and if the evidence advance is not deposited, the requested evidence will be considered abandoned, and if the expense advance is not deposited, a lawsuit should be filed. he is dismissed due to the absence of a lawsuit requirement.[3]
Giving a Guarantee (CMK Md. 114/1-d)
If a Turkish citizen who does not have a habitual residence in Turkey files a lawsuit, participates in the case as an intervener or follows the case together with the plaintiff; the plaintiff has previously been bankrupt, restructuring operations have been initiated by concordat or settlement; certification that the plaintiff is in bankruptcy for reasons such as finding an invalid document, finding an appropriate security to be determined by the court, and covering possible trial expenses incurred by the defendant (Article 86). (CMK) must be shown by the plaintiff (CMK m. 86). ), an appropriate guarantee must be provided by the claimant party (CMK m. 84). If the guarantee is not shown within the period determined by the judge (since there is no legal requirement), the case is rejected by procedure (CMK m. 88/1).
In the event that situations and conditions requiring security arise during the hearing of the case, the court decides that the security must be provided. If this deficiency is not corrected, the case will be dismissed because there is no legal requirement (CMK m. 84/2).
Legal Interest (CMK Md. 114/1-h)
It is a condition of the case that the plaintiff has a legal interest in filing a lawsuit. As a rule, the legal interest, which is the condition of the case, should be taken into account at every stage of the trial within the framework of the evidence, events or facts submitted by the parties to the case file according to the date of opening of the case. lawsuit. However, this legal interest should be a legitimate and personal interest, it should be born and up-to-date on the date of opening of the case, and it should be legitimate and worthy of legal protection.
The existence of a legal interest is essential in retaliatory actions and construction actions. The plaintiff has no obligation to declare and prove that he has a legal interest in such cases. In the determination decision case, unlike the enforcement case and the construction case, it is not assumed that the plaintiff has such a legal interest; the plaintiff must declare and prove that he has a legal interest in filing a lawsuit for the determination decision. Since the determination case can be filed before the denial or violation of a legal situation or right, that is, before any damage occurs, it has emerged as an exception to the condition that the interest was born and is up-to-date.
Lack of Complaints (CMK Md. 114/1-o)
A review is an institution of procedural law that Decrees that there is an ongoing case on the same issue between the same parties based on the same litigation topic. In order for the merits of the case to be heard in a civil court, the same case should not be filed in the same court or another court for the second time while the first case is ongoing. If the same case is filed a second time in the same court or another court while the first case is ongoing, the second case will be dismissed from the procedural point of view because it is pending.
The pending objection protects the idea that the plaintiff has no legal interest in reopening and hearing the same case.
The Absence of a Final Decision (CMK m. 114/1-i)
In order for the case to be examined on the merits in the civil court, the same case must not have been decided before. This is a negative case condition.
If there is a final judgment on the subject of the case (CMK m. 303), that is, if a lawsuit has been filed previously on the same issue, between the same parties, based on the same cause of action, and the Decrees have been finalized, the new lawsuit filed due to the existence of the finalized judgment should be rejected from the procedural point of view.
[1] Court of Cassation 20. HD., 02.03.2017 T ., 2016/14736 E ., 2017/1799 K .
[2] YHGK 05.04.2017 T., 2016/497 E ., 2017/660 K.
[3] Court of Cassation 11. HD., 27.09.2016 T ., 2016/5485 E ., 2016/7533 K.
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