NEGATIVE DETERMINATION ACTION (ICC Art. 72)
“Negative determination and recovery actions:
Article 72 – (Amended: 18/2/1965-538/43)
The court hearing a negative determination action filed prior to enforcement proceedings may, upon request, issue a provisional injunction to suspend enforcement proceedings, provided that the amount to be paid as security is not less than fifteen percent of the claim. Compensation may be sought from the court through provisional measures to have the funds in the enforcement office released. The decision shall be finalized. (Amended provision: 6352 SK-02.07.2012/Article 15) “Not less than twenty percent.” (Amended paragraphs: 09/11/1988 – 3494/6) If the court rules against the debtor, the enforcement proceedings shall be suspended.
Upon the finalization of the judgment, the proceedings shall be terminated in accordance with its content, and the judgment shall be enforced through execution or the matter shall be restored to its original state. If it is determined that the proceedings compelling the debtor to file a negative determination lawsuit are unjust and malicious, upon request, the court may order the creditor to compensate the debtor for the damages incurred as a result of the proceedings. The damages to be awarded shall not be less than “twenty percent” of the value of the subject matter of the enforcement proceedings found to be unjust (Amended provision: Law No. 6352 of July 2, 2012, Article 15).
I. General Provisions:
• The creditor may have a set of circumstances worthy of protection in determining whether the debtor is liable for the compensation that has been taken into collection. In such cases, where the debtor is in hiding, a lawsuit may be filed to determine whether the debtor is liable. A negative determination may be made before or after collection. However, once the debtor has paid the debt to the enforcement office, he or she can no longer file for a negative determination. Following this, a lawsuit may be filed to recover the money paid by the debtor despite the absence of actual debt, which is known as a restitution lawsuit.
• If the creditor has filed and won a lawsuit to overturn the objection during the enforcement process, it is no longer possible to file a negative determination or restitution lawsuit regarding the same claim and between the same parties due to the final judgment.
• Negative Determination Lawsuit:
A negative determination lawsuit is a lawsuit that the debtor can file before paying the debt to establish the existence of the debt. If the debtor wins this lawsuit, the enforcement is canceled, and the debtor is relieved of the obligation to pay the debt. The debtor can choose whether to file a negative determination case before or after the enforcement. The debtor may file a negative determination case before the creditor initiates enforcement proceedings, or after enforcement proceedings have been initiated. However, the consequences for the debtor will differ depending on when the case is filed.
• Conditions for a Negative Determination Case:
The subject of our article is the “Negative Determination Lawsuit” regulated in Article 72 of the Enforcement and Bankruptcy Law. The nature of this lawsuit as a determination case must be explained in conjunction with the Determination Lawsuit provision regulated in Article 106 of the Code of Civil Procedure. Relevant provisions of the law are as follows:
“Civil Procedure Code No. 6100 Determination Action”
ARTICLE 106
“(1) Through a determination action, the court is requested to determine the existence or non-existence of a right or legal issue, or whether a document is genuine or forged.
(2) Except for the exceptional cases specified in the law, the filing of a declaratory action must be based on a current list of legally protectable grounds.
(3) Material facts cannot constitute the subject matter of a declaratory judgment regarding a single event.”
For the purposes of explaining the text of the article, the determination of a right or legal situation or the authenticity of a document may be requested from the court through a declaratory judgment.