civil law procedure 1

LAW OF CIVIL PROCEDURE

Introduction

  • Overview of civil procedure and its function within courts.

Civil Procedure: Civil Dispute Resolution In General

  • Understanding civil procedure begins with recognizing the nature of legal disputes.

    • Disputes can occur between individuals, individuals and the State, or governmental organizations.

    • Distinctions among disputes lead to various branches of the judiciary.

  • Definition of a "civil dispute":

    • A disagreement arises when a legally recognized right is harmed or unmet by another member of society.

    • For a legal dispute to be considered civil, the right must relate to private law areas (e.g., obligations, commercial, consumer protection).

Types of Civil Dispute Resolution

  1. Self-resolution: Parties resolve disputes among themselves.

  2. Alternative Dispute Resolution (ADR): Involves a neutral third party.

  3. Arbitration: Disputes resolved before an arbitrator rather than in court.

  4. Litigation: The court-enforced resolution of disputes; guaranteed right to a fair trial per Article 36 of the Turkish Constitution.

Civil Procedural Law

  • Civil procedural law governs relationships in civil litigation.

  • Establishes rules to be followed by civil courts during resolution processes.

Sources of Civil Procedure

  • Three main sources in Turkey:

    1. Code of Civil Procedure (CoCP).

    2. Court of Cassation (CoC) opinions.

    3. Legal literature.

Courts in Turkish Civil Judiciary

  • Article 9 of the Constitution mandates independent courts.

  • Three Levels of Courts:

    1. Court of Cassation: Highest civil judiciary authority; reviews final decisions of lower courts.

    2. Circuit Courts of Appeals: Intermediate level, established in 2004, operational from 2016; reviews final decisions of first instance courts.

    3. Civil Courts of First Instance: Resolve disputes initially; include general and specialized jurisdiction.

Specialized Courts

  • Seven specialized courts:

    1. Cadastral courts

    2. Labor courts

    3. Compulsory enforcement courts

    4. Consumer courts

    5. Civil Courts for Intellectual and Industrial Property Rights

    6. Family courts

    7. Commercial courts

Court Jurisdiction

  • Each court operates within its geographical jurisdiction.

  • Judicial assistance must be sought from the relevant court when issues cross jurisdiction.

Judges

  • Judges execute judicial power in Turkey; must be:

    • Turkish citizens

    • Law graduates

    • Pass examinations and training.

Judicial Independence

  • Articles 138-140 of the Constitution ensure judges' independence and protections against dismissal.

  • Civil liability of judges regulated by CoCP; state can be sued, not individual judges.

Lawyers (Attorneys)

  • Essential for defense and the organization of legal relationships.

  • Only lawyers can provide legal representation or advice in disputes.

Becoming a Lawyer

  • Necessary steps to become a lawyer:

    1. Graduating from law faculty

    2. Completing one-year apprenticeship

    3. Registering with a bar association.

Representation in Civil Litigation

  • Generally, representation by a lawyer is not mandatory, but exceptions exist (e.g., party lacks competency).

Administrative Court Staff

  • Administrative offices manage court operations (e.g., serving documents).

  • Key roles include court clerks and court stenographers who record proceedings.

Principles of Civil Procedure

  • Courts utilize fundamental principles that guide litigation:

    • Essential Principles: Derived from the Constitution and human rights conventions.

    • Defining Principles: Govern court decision-making (e.g., disposition principle, party presentation).

    • Judicial economy emphasizes simplicity, speed, and cost-effectiveness in proceedings.

Time Requirements and Judicial Service

  • Time requirements dictated by statute or determined by the judge; may not be altered arbitrarily.

  • Judicial documents must be properly served to ensure the parties are notified and actions are legally binding.

Parties in Litigation

  • Involves two parties: the plaintiff (davacı) and the defendant (davalı).

  • Each party must have legal capacity to engage in litigation.

Aspects of Party Capacity

  1. Capacity to be a Party: Legal rights holder can be a party.

  2. Capacity to Conduct Civil Proceedings: Adults generally have this capacity; minors and incapacitated persons have limited capacity.

  3. Capacity to Litigate: Ability to secure judgment about the relief demanded.

  4. Real Party in Interest: Only entitled individuals can be parties to litigation.

  5. Party Representation: Actions can be conducted personally or through an appointed attorney.

  6. Joinder of Parties: Multiple persons can comprise a party; permitted based on procedural or substantive reasons.

  7. Third Party Intervention: Third parties can intervene in ongoing actions under specified conditions.

Actions in Civil Procedure

Types of Actions

  • Actions categorized by the legal remedy sought:

  1. Actions for Performance: Requests for the court to enforce actions (e.g., damages, debt recovery).

  2. Declaratory Actions: Court determines existence of rights or legal relations.

  3. Constructive Actions: Court creates/modifies existing legal statuses (e.g., divorce).

Procedural Requirements

  • Key procedural aspects must be verified during litigation:

    • Courts must have jurisdiction over the matter and parties.

    • Legal interests must be present; actions must not be identical to pending cases.

Subject-Matter Jurisdiction and Venue

  • Subject-matter jurisdiction rules determine appropriate courts for claims.

  • Venue addresses geographical boundaries of court authority.

Commencement of Action

  • Actions initiated through written procedures; entail multiple stages (pleadings, examination, trial, judgment).

Answering a Complaint

  • Defendant responds within a set time frame; failure to do so results in assumption of denial of claims.

  • Defenses may arise from substantive or procedural law, with various classifications.