First Objections in Civil Cases
The Code of Civil Procedure provides a limited list of what constitutes the first objection. Accordingly, in cases where there is no definite authorization rule, the objection to authorization, the objection that the dispute should be resolved by arbitration and the objection to division of labor are the first objections, and it is not possible to make the first objection other than this. these are (CMK m. 116).
In the Code of Civil Procedure Numbered 6100, which replaced the Law Numbered 1086 and entered into force on 01.10.2011, the number of first objections was reduced from six to three, and some of the grounds for the first objections were regulated. as a condition of action. For example, while “waiting” is among the first objections listed in the old law, it is not among the first objections in the Civil Procedure Code No. 6100, but it is among the conditions for filing a direct lawsuit by including the Decrees “Decrees” in the Civil Procedure Code, “”,””,””,””,””, “”,””, “”, “”, “”, “”, “” Decrees. Paragraph 1 of article 114 (i), which regulates the conditions for filing a lawsuit, contains the provision ”The same lawsuit has not been filed before and is still pending”.
The Code of Civil Procedure also regulates the procedure for filing and examining initial objections. Accordingly, initial objections are not evaluated by the judge ex officio, as there is no requirement to file a lawsuit. The defendant may put forward his first objections at any stage of the case and not at any time, but in the response petition at the beginning of the case.[1]
As a rule, the response time is two weeks from the date of notification of the lawsuit petition to the defendant. However, in cases where it is very difficult or impossible to prepare a response petition within this period according to the situation and circumstances, the defendant who applies to the court during this period may be granted additional time Oct. only and not exceeding one month (CMK m. 127 and 317). In case the defendant does not submit all of his initial objections within the two-week response period and/or additional period, the court may not examine the initial objections after this period, even if the plaintiff consents (CMK m. Oct. 117/1). ).[2] In the same way, the plaintiff must submit his first objections to the counterclaim together with the response petition he submitted against the counterclaim.
The examination of the first objections is carried out after the conditions of the case (CMK m. 117/2). Paying paid expenses, for example, the authority objection will be examined after it is determined whether the expense advance has been paid or whether the court is competent. However, the objection to authority, which is the subject of the first objections, is specific to cases where the authority is not final.[3]
Likewise, if the plaintiff has applied to the court despite a valid arbitration agreement, the defendant is required to assert that the dispute should be resolved by arbitration as the first objection in the response petition.
The first objections are examined as a preliminary issue and decided (CMK m. 117/3). Accordingly, if the judge finds it worthwhile to examine the initial objections made by the defendant or the plaintiff responding to the counterclaim in the response petition, he notifies the opposing party to submit his answer in the lawsuit petition along with his evidence, if any. the period of time that the judge will determine. If there is a disagreement between the two parties regarding the first objection, the judge will make a Deci-sion after inviting and hearing the parties, if necessary. The judge shall notify his decision on the first objection or notify the parties (CMK m. with reference to 117/3, m. 164).
On the other hand, if one of the first objections is examined and accepted, the others do not need to be examined, or the first objections are examined by determining the priority order in this way. If one of the first objections is examined more than once, the others will not need to be examined by that court, and the file will be sent to another court (decision of dismissal), the other first objections will be examined by the submitted court. court.
Solution
As a result, according to the CMK, the first objections are divided into three as an authorization objection in cases where there is no definitive authorization rule, an objection that the dispute should be resolved by arbitration, and a division of labor objection. Apart from these, it is not possible to make the first objections. In addition, these objections are not evaluated ex officio by the judge since they are not a condition of the case and must be put forward in the response petition. Otherwise it will not be taken into account
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