Author: Piraye Erdem
In civil procedural law, a ban on the expansion and alteration of a claim and defense comes with two exceptions; the other party's consent, and "the amendment". The parties may completely or partially amend their proceedings prior to the end of the investigation phase. Provided that the legal requirements are fulfilled, an amendment may be filed without the consent of the other party or the court, since it is a unilateral and express declaration of will directed at the court1. For instance, the parties may amend the value of the claim, or claim compensation, instead of payment in kind for defective goods.
However, the Decision on Unification of Judgments dated 04.02.1948 and numbered 1944/10 E., 1948/3 K. ("DUJ"), prohibits the amendment after reversal of the verdict, by addressing the grounds as the law's explicit provision, the acquired rights, and the functions of simplicity and promptness aimed for through the amendment.
On the other hand, an application was brought to the Court of Cassation General Assembly ("CCGA") on the Unification of Judgments claiming that the elimination of discrepancy between the opinions of several chambers of the Court of Cassation was required since Article 177/1 of the current Code of Civil Procedure ("CCP") numbered 6100 that entered into force on 01.10.2011, and which abrogated the former Code of Civil Procedure ("fCCP") numbered 1086, foresees that the amendment may be filed prior to the end of the investigation phase. For this reason, the case may be converted to the investigation phase after reversal of the verdict by the Court of Cassation, the Article 177 has been misinterpreted, and that the DUJ has lost its topicality to the CCP. This article examines the decision of the CCGA dated 06.05.2016 and numbered 2015/1 E. 2016/1 K. that was taken following the aforementioned application.
Opinions of Supporters on a Change of the DUJ
These opinions are as follows:
- It is inexplicable to allow the expansion and alteration of claim with the other party's consent, meanwhile, prohibiting an amendment.
- After reversal of the verdict, the case may be reversed to exchange of petitions, preliminary examination, investigation, oral proceedings or decision phase, according to the content of the reversal. If the case reverts to the exchange of petitions, preliminary examination or investigation phase, it is requisite to make the filing of an amendment possible. An amendment shall not be filed where the case reverses to the oral proceedings or decision phase since making an investigation is not possible at those stages. In the current situation, the plaintiff may use the amendment right in repeated proceedings where the dismissal of a claim on procedural grounds was subject to an approval from the Court of Cassation. It is then inexplicable that the plaintiff cannot use the amendment right in repeated proceedings where the dismissal of a claim on procedural grounds was subject to a reversal. Therefore, any reversal on procedural grounds shall result in the forfeiture of the plaintiff's unformed amendment right.
- To ban the right of amendment, which may only be used once during the proceedings, without any supporting legislation, is against the right to legal remedies set forth in Articles 36 and 14 of the Constitution.
- The Decision on Unification of Judgments dated 28.04.1959 and numbered 1957/13 E., 1959/5 K. rules that the examination restarts after the reversal, the reason being that "after a verdict has been reversed for any reason whatsoever by the court of appeal, the case reverts to the court process through the court of first instance's observance; therefore, the civil procedure is yet to be finished." As a result, the amendment may be filed prior to the end of the investigation phase according to Article 177/1 of the CCP.
- Thus, the philosophy in the civil procedure has changed. For instance, the ban on the expansion and alteration of claim and defense starts with the exchange of first round petitions, i.e. pleading and response, according to the fCCP, while it starts with the exchange of second round petitions, i.e. rebuttal and rejoinder, according to the CCP. In addition, the CCP grants the right of expansion and alteration of claim and defense to the party who attends the preliminary examination hearing in the absence of the other party.
