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Translated from Turkish by Tim Drayton
Part two of the 2011 Code of Civil Procedure governing types of action, procedural requirements and preliminary objections
THIS IS THE TRANSLATION OF THE TEXT OF LAW NO 6100 (CODE OF CIVIL PROCEDURE) AS IT STOOD ON 22.7.2020 AND DOES NOT INCORPORATE ANY SUBSEQUENT AMENDMENTS THAT MAY HAVE BEEN MADE.
Types of Action, Procedural Requirements and Preliminary Objections
Types of Action
ARTICLE 105- By means of performance action, application is made to the court for the defendant to be ordered to give or do or not to do something.
ARTICLE 106- (1) By means of declaratory action, application is made to the court for determination of the existence or non-existence of a right or legal relationship or whether a document is false or not.
(2) The bringer of declaratory action must, apart from exceptional cases laid down in statute, have a current interest worthy of legal protection in bringing this action.
(3) Material facts may not on their own be brought to issue in declaratory action.
Unquantified claim and declaratory action
ARTICLE 107- (1) In cases where he cannot be expected to fully and precisely determine the quantity or amount of the claim on the date the claim is filed or this is impossible, the creditor may file an unquantified claim action by specifying the legal relationship and a minimum quantity or amount.
(2) (Amended: 22/7/2020-7251/Art. 7) As soon as the quantity or amount of the claim becomes fully and precisely determinable ensuing from information disclosed by the opposing party or the examination proceedings, the claimant may fully and absolutely specify his claim without being subject to the bar on expansion of the claim within an absolute period of two weeks granted by the judge without the examination proceedings terminating. Otherwise, the proceedings are adjudicated as per the amount and value specified in the relief sought.
(3) (Repealed: 22/7/2020-7251/Art. 7)
ARTICLE 108- (1) By means of formative action, application is made to the court for the creation of a new legal situation or the modification of the content of an existing legal situation or its extinction.
(2) In cases where a formative right must be exercised through legal action, formative action is to be brought.
(3) Unless stated otherwise in statute, formative judgments are not retroactive.
ARTICLE 109- (1) In cases where the subject matter of the action is by nature divisible, legal action may be brought for one portion alone.
(2) (Repealed: 1/4/2015-6644/Art. 4)
(3) Unless the remainder of the subject matter is expressly waived on bringing the action, the bringing of partial action does not amount to waiver of the remainder of the subject matter.
Combination of actions
ARTICLE 110- (1) The claimant may assert more than one mutually independent principal claim against the same defendant in the same statement of claim. This is conditional on the claims being pursued falling in their entirety to the same branch of the judiciary and the existence of a court with territorial jurisdiction over all the claims.
Action framed in the alternative
ARTICLE 111- (1) The claimant may assert more than one claim against the same defendant setting out a relationship of superordination-subordination between them. This is conditional on the existence of a legal or economic connection between the claims.
(2) The court may not examine and adjudicate the subordinated claim until it orders dismissal on the merits of the superordinated claim.
Action for an order in the alternative
ARTICLE 112- (1) With alternative obligations, if the obligor or a third party with whom the alternative right rests refrains from exercising this right, the obligee may bring action for an order in the alternative.
(2) In action for an order in the alternative, the court, if it concludes that the claim complies with the law, renders an order in the alternative.
(3) The obligee who puts the order in the alternative into compulsory enforcement must restrict the subject matter of enforcement to one of the performances contained in the order. However, this situation does not eliminate the obligor’s right to satisfy the obligation by rendering the other performance.
ARTICLE 113- (1) Associations and other juristic persons may, within the remit of their articles of association and so as to protect the interests of their members or associates or the circles they represent, bring action in their own name for the declaration of interested parties’ rights, the remedying of unlawful situations or the prevention of the violation of interested parties’ future rights.
Procedural Requirements and Preliminary Objections
ARTICLE 114- (1) Procedural requirements are the following:
a) Turkish courts having right of jurisdiction.
b) The branch of justice being permissible.
c) The court having subject-matter jurisdiction.
ç) Where there is a prescribed forum, the court having jurisdiction.
d) The parties having the capacity to be a party and the capacity to take legal action; where legal representation is involved, the representative having the requisite attributes.
e) Having the right of action.
f) In actions pursued through the intermediation of an attorney, the attorney having capacity to act as an attorney and possessing a duly constituted power of attorney.
g) The advance on fees the claimant is required to deposit having been deposited.
ð) An order for the furnishing of security having been complied with.
h) The claimant having legal interest in bringing the action.
ý) The same action not having been previously brought and being pending.
i) The same action not having previously undergone final adjudication.
Examination of procedural requirements
ARTICLE 115- (1) The court examines of its own motion at all stages of the proceedings whether the procedural requirements are satisfied. The parties may also assert the absence of procedural requirements at all times.
(2) The court, if it detects the non-satisfaction of procedural requirements, orders dismissal of the action on procedural grounds. However, if the the non-satisfaction of procedural requirements is capable of remedy, it gives an absolute time period for this to be completed. If the non-satisfaction of procedural requirements is not remedied within this time period, it orders dismissal of the action on procedural grounds for absence of procedural requirements.
(3) If the unsatisfied procedural requirements are not noticed by the court or asserted by the parties before the merits are addressed but such absence is nevertheless remedied at the time of judgment, the action may not be dismissed on procedural grounds due to initial non-satisfaction of procedural requirements.
ARTICLE 116- Preliminary objections consist of the following:
a) Objection to territorial jurisdiction in the absence of a prescribed forum rule.
b) Objection that the dispute must be resolved through arbitration.
c) (Repealed: 22/7/2020-7251/Art. 8)
Assertion and examination
ARTICLE 117- (1) All preliminary objections must be asserted in the reply submission otherwise they cannot be entertained.
(2) Preliminary objections are examined after procedural requirements.
(3) Preliminary objections are examined and adjudicated in the manner of preliminary issues.
Archive of Turkish legal translations by Tim Drayton