WHAT DOES THE NEW HMK SAY ABOUT "AMENDMENT OF PLEADING AFTER THE REVERSAL"? 22 October 2020
A groundbreaking change has taken place that will put an end to the controversies that have been going on for decades regarding the "Amendment of Pleading After Reversal Decision" regulation of the HMK. In this newsletter, we are going to examine what the new regulation brings.
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There are many important amendments on the Code of Civil Procedure numbered 6100 with the Law No.7251 which published on Official Gazette dated 28.07.2020 and numbered 31199. |
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All of these amendments which have been introduced contain regulations that are very important in terms of procedural law. One of them is the amendment in Article 177, which states that “amendment of pleading” shall be made in disputes that return to the court of first instance after the decision of reversal or removal. The additional paragraph brought to the article has a feature to put an end to the ongoing discussions on the subject and to clarify the amendment of pleading after the reversal issue. |
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In this newsletter of ours, we are going to focus on this important amendment regarding the amendment of pleading. |
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What is amendment of pleading? |
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There are two exceptions to the prohibition of extension or change of claims and defense, which is imposed in order to continue the trial process in a healthy way by limiting the submission of the claims and defenses of the parties and the facts that are the basis of them with a period of time, to a certain trial phase. One of these exceptions is the acceptance of the other party while the other is amendment of pleading. |
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Amendment of pleading is the process of changing the procedural transactions performed by one of the parties during the trial partially or completely. Amendment of pleading is an opportunity to change the case, in other words to eliminate the prohibition of extension or change of claims and defense, and it has a highly important function in the trial for the parties. |
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Since the amendment of pleading is a unilateral and clear declaration of intention brought to the court, it does not depend on the acceptance of the other party or the court if the legal requirements are met. For instance, the parties can increase the value of the lawsuit or change their request completely, regardless of the acceptance of the counterparty. |
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Until when the parties can amend the pleading? What is changed with the new regulation brought about the timing regarding the amendment of pleading? |
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Paragraph 1 of Article 177 of the Code of Civil Procedure ("HMK") No. 6100, which repealed the Code of Civil Procedure No. 1086 ("HUMK") with its entry into force, regulates that the amendment of pleading shall be made until the end of the investigation. |
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However, this regulation is in the same direction as the provisions of the HUMK regarding the amendment of pleading and it has not clarified the “is it possible to amend the pleading after the decision of reversal?” issue which has been controversial before the date of entry into force of HMK numbered 6100 and considered to have been remedied by the Decision of the Court of Cassation General Assembly on the Unification of Judgements numbered 1944/10 M. 1948/3 D and dated 04.02.1948. |
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For this reason, controversy and disagreements about the Decision of the Court of Cassation General Assembly on the Unification of Judgements, dated 04.02.1948, which prohibits the amendment of pleading after the decision of reversal, have not ended after 01.10.2011, the date which the HMK numbered 6100 entered into force. As a result of differences in interpretation between the decisions of the Civil Chambers of the Court of Cassation, the General Assembly on the Unification of Judgements is requested that these contradictions between the departments be eliminated by unification of the decisions. The decision numbered 2015/1 M. and 2016/1 D. and dated 06.05.2016, issued by the General Assembly on the Unification of Judgements upon the aforementioned request, has been concluded by the majority of votes that "after the reversal decision, no amendment of pleading can be made and the Decision of the Court of Cassation General Assembly on the Unification of Judgements dated 04.02.1948 does not need to be amended" while the many legal interpretations made about why the Decision of the Court of Cassation General Assembly on the Unification of Judgements dated 04.02.1948 should be changed in the dissenting opinions. |
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The dissenting opinions in general it has been advocated to change the Decision of the Court of Cassation General Assembly on the Unification of Judgements according to the reasons that it is a necessity to achieve a clear application in line with the principles of freedom to seek rights and facilitating the acquisition of a right, the decision dated 04.02.1948violates the right to legal remedies and access to court, that the legislator have not made a regulation which indicates that the amendment of pleading is not possible after the reversal decision in both the former law and the law numbered 6100 while it can, that a reversal decision resulting from the procedural law, which has given before consideration of merits, abolishes the right of correction granted to the parties before it was born and according to the provisions of the law numbered 6100 it is regulated that the investigation is going to start after the reversal in the procedural decisions without entering the merits and that the investigation is going to start again with complying with the reversal of the decisions on the merits. |
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As it is seen, the issue of whether it is possible to amend the pleading after reversal has been a subject of dispute in our law for many years, and there was no consensus on the issue before the amendments introduced by Law No. 7251. |
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The additional paragraph brought to Article 177 of the HMK by Law No. 7251, which was published in the Official Gazette dated 28.07.2020 and numbered 31199, is an arrangement that will break a new ground and put an end to all this uncertainty that has been going on for decades. |
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According to the amendment that has been brought to Article 177/2 of HMK by the law numbered 7251; "When the file is sent to the court of first instance after the reversal decision of the Supreme Court or the abolition decision of the regional court of appeal if the court of first instance takes an action regarding the investigation, the amendment of pleading can be made until the end of the investigation. However, the legal situation that arose by complying with the decision of reversal cannot be eliminated. " |
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Thus, the legislator has clearly determined that if an action is taken regarding the investigation when the file is returned to the court of first instance after the reversal and removal decisions, the correction can be made until the investigation is completed. |
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For this reason, the additional second paragraph regulation on "the amendment of pleading after reversal" brought to Article 177/2 of the HMK takes an important place among the new HMK amendments and aims to completely eliminate the uncertainty in implementation. |
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