In a narrow sense, a change of party is when one of the parties to an ongoing lawsuit leaves the case and is replaced by a third person. With this definition, the addition of new persons to one of the parties in an ongoing case can also be considered as a change of party. Since there was no regulation regarding the voluntary change of parties in previous legal periods, there were no voluntary changes in practice.
In the opinion of the Supreme Court, even change was not possible through changing the defense. However, the institution of voluntary exchange of parties was introduced with the Civil Procedure Law No. 6100. The most important benefit of changing the parties voluntarily is that it provides procedural economy. As a rule, it is not possible for the plaintiff to change the side indicated in the petition after the lawsuit has been filed. One of the possible consequences in this case is the dismissal of the case due to the fact that the accused does not have the status of a party.
To prevent the dismissal of the case, the plaintiff may waive the case, withdraw the case or not pursue the case, deem the case unopened after removing the file from the process, and file a separate case by specifying his name. the right person as a party. However, these procedures have negative consequences both for the plaintiff and negatively affect the overall trial, as they unnecessarily increase the workload of the courts. Therefore, in some cases, there is a legal benefit in allowing a change of party from the point of view of procedural economics.
Voluntary change of parties eliminates the possibility of a new trial being opened and decided by a different judge due to the same issue and case, and prevents the prolongation of the trial period by allowing the case to be heard. By the judge who previously investigated the case. CMK m. according to Article 124/1, one of the parties must accept a voluntary change of parties. The first paragraph is as follows: “A change of party in a case is possible only with the express consent of the other party.” It is as follows.
If the lawsuit is actually filed by a person who is not a party or a lawsuit is filed against a person who is not a party, a voluntary change of party is required, since the lawsuit must be conducted by the person who is a party. it’s actually a party1. The Court of Cassation on the issue 15. There is a decision of the Legal Department (15. HD., E . 2016/5718 K. 2017/590 T. 14.2.2017). The above-mentioned decision states that:
“CMK’s 124. according to the article; A change of party in a case is possible only with the explicit consent of the other party (124 / …). The special provisions of the laws related to this issue are reserved (124 /…). However, a request to change sides that is caused by a material error or does not violate the rule of honesty is accepted by the judge without seeking the consent of the other party (124 /…). If the incorrect or incomplete representation of the party in the statement of claim is based on an acceptable error, the judge may accept the request to change sides without seeking the consent of the other party. In this case, the judge decides the costs of the trial in favor of the person who ceases to be a party to the case and does not cause a lawsuit to be filed against him (124/…).
During the discussion of the CMK draft at the Justice Commission, it was added to the draft law … and …. when the justifications of the clauses are examined, it is understood that the legislator has made arrangements by accepting the party change within the time limit. Making an error in the representation within the scope of the article. Regardless of the justification, a voluntary change of party, which is a more serious procedural error, which the legislator indicates may be accepted if the parties declare contrary to the truth, involves a representation error, a lighter procedural error than the other. For this reason, in case the party makes a statement contrary to the truth due to a representation error, CMK 124. the article will be applicable.
When the concrete event is evaluated together with the above-mentioned explanation and the above-mentioned rules; …. … The Construction Regional Directorate, which is shown as a defendant in the lawsuit petition, is not a legal entity, but the main competitor ….. and, … the Regional Directorate of Construction is also connected …. ….To which the Regional Directorate of Construction is affiliated …., it is obvious that there is a mistake in the representative.
Lawyer to the preliminary examination hearing, where the decision was made despite the objection of the objection… he came as the defendant’s attorney, this lawyer of yours, to the hearing ….it was not asked whether he came as a lawyer, the plaintiff was allowed to attend the hearing. the plaintiff was not asked for a clear explanation of the party’s misrepresentation. However, if there is a deficiency in the terms of the case as a result of the incorrect declaration of the wrong party in the representation, this is 124 of the CMK.
It is a deficiency in the conditions of the case that can be completed by using the article. If it is possible to eliminate the deficiency in the terms of the case, the relevant party should be given a period of time in accordance with article 115 / …. Of the CCP. according to article 115 /…, since it is not correct to decide to dismiss the case in writing without giving the plaintiff time. CMK’s 124. in order to complete the deficiency in the conditions of the case by making a voluntary change of party by taking advantage of the article, the decision must be overturned in favor of the appellant.”
According to the Code of Civil Procedure, a voluntary change of party can be made in two ways: with the consent of the other party or with the permission of the judge. Except for this possibility provided for in Article 124 of the Code of Civil Procedure, a voluntary change of party is not possible by changing the petition of the lawsuit. If the plaintiff wants to change the defendant, only the explicit consent of the defendant of the current case is sufficient; the consent of the new defendant is not important. In order for the plaintiff’s side to be changed, the previous plaintiff must first request it.
Because it is unacceptable for anyone to give up his claim against his will. If a request is made to replace the plaintiff who is a party to the lawsuit petition, the consent of both the defendant of the current lawsuit and the new plaintiff must also be present. Article 124/3-4 of the CMK regulates the change of parties with the permission of the judge. The law regulates that;
“(3)
However, a request for a change of party that is not caused by a material error or is not contrary to the rule of honesty is accepted by the judge without seeking the consent of the other party.
(4)
If the incorrect or incomplete representation of the party in the petition is based on an acceptable error, the judge may accept the request to change sides without seeking the consent of the other party. In this case, the judge rules the costs of the trial in favor of the person who ceases to be a party to the case and does not cause a lawsuit to be filed against him.” It is as follows.
Although an optional change of party usually takes place with the consent of the other party, seeking the absolute consent of the other party is contrary to the principle of imperfection, as it will lead to prolongation of the trial and the opening of a new lawsuit in some cases. procedural economics. The legislator who foresees this situation has recognized the right to change with the permission of the judge in the presence of certain conditions.
The legislator, with the permission of the judge, has collected the grounds for the amendment under 3 headings. These; a change of party due to a material error is a request for a change that does not contradict the rule of honesty, and a change of the party at its own request due to an acceptable error. Considering the Supreme Court application, filing a lawsuit against a deceased person, making a mistake as a party despite adequate investigation, and similar situations can be given as examples of voluntary switching of parties that do not violate the rule of honesty. .
If the incorrect or incomplete representation of the party in the petition is based on an acceptable error, the judge may accept the change of party without seeking the consent of the other party. It should be noted that the cases that are considered acceptable errors also do not constitute a violation of the code of integrity, since 124 of the CMK. article 3. and 4. the conditions required in the paragraphs are fulfilled at the same time.
Within the scope of voluntary change of party cases due to acceptable error, there are cases such as proxy error, filing a lawsuit against a non-legal entity, making errors in official registers and records and causing the party to be represented incorrectly. the missing party and similar situations can be evaluated2. 20 of the Supreme Court on the issue. There is a decision of the Legal Department (20. HD., E . 2017/1874 K. 2017/2756 T. 3.4.2017). The above-mentioned decision states that:
“The plaintiff, the plaintiff, naming the defendant as the defendant, demanded the return of the real estate subject to the lawsuit, the eviction of the defendant tenant if it is not returned, the prohibition of the actual interventions of the defendants. , it was decided by the court to dismiss the case on the grounds that there was no animosity due to the fact that the defendant was not a tenant in the real estate subject to the lawsuit and therefore did not have the title of a party, and the decision was appealed by the lawyer. plaintiffs.
Although the enmity is related to public order and should be taken into account by the court ex officio during the trial, it is not considered correct to decide to dismiss the case without forming the parties, the nomination of a surrogate should be accepted. company manager … CMK 124 because the other party has a defect in the proxy. in accordance with the provisions of the article, the petition for a lawsuit … Educational Services Tourism Transportation Domestic and Foreign Trade Limited Company considering the economics of the case.”
There are necessary conditions for an optional party change. The first of these is the request for voluntary party change. Voluntary change is not an issue that the judge will examine officially. A request for a change of party may be made in writing or verbally. There is no procedure prescribed in the law. As can be done with a written statement, it may also be requested to be recorded in the minutes of the hearing during the hearing. According to the explicit provision of the law, the consent of the other party or the permission of the court is the other condition for a voluntary change of party. Finally, it is necessary to make an assessment in terms of when voluntary changes can be requested.
The legislator did not make any arrangements regarding the duration when arranging the voluntary exchange of the parties. In this regard, it may be evaluated that a voluntary change of party may be made until the final decision is made by the court of first instance. Since the voluntary change of parties means the withdrawal of the case from the plaintiff’s point of view and the opening of a new case for the new participant in the case, an evaluation should be made by comparing the provisions of the CMK. CMK’s 123. according to Article 357 of the CMK, while it is possible to withdraw the case until the decision is finalized. according to the article, a new case can only be filed in the court of first instance.
Accordingly, it is possible until the final decision on the case is made in the court of first instance. CMK’s 124. in the last sentence of the article, an arrangement has been made in terms of trial expenses. “In this case, the judge rules the costs of the trial in favor of the person who has been removed from being a party to the case and has not caused a lawsuit to be filed against him.” According to this provision, the court is required to rule on the costs of the trial in favor of the defendant, who has been removed from being a party to the case. Since this person has no fault in making false statements to the current defendant and has to deal with cases that he should not deal with3, the costs of his trial must be covered.
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