WHAT DOES THE NEW HMK SAY ABOUT "AMENDMENT OF PLEADING AFTER THE REVERSAL"? 23 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.
|
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. |
|
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. |
|
In this newsletter of ours, we are going to focus on this important amendment regarding the amendment of pleading. |
|
What is amendment of pleading? |
|
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. |
|
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. |
|
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. |
|
Until when the parties can amend the pleading? What is changed with the new regulation brought about the timing regarding the amendment of pleading? |
|
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. |
|
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. |
|
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. |
|
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. |
|
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. |
|
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. |
|
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. " |
|
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. |
|
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. |
Other News
-
16.6.2025
The Court Of Cassation Abandoned Its Long-Standing Precedent Regarding Construction Conracts In Return For Land Shares, Known As "Advance Deed"
Construction contracts in return for land shares are a common practice in the construction sector in Turkey.
-
11.6.2025
Amendments To The Regulation On Distance Contracts: Return Shipping Fees And Right Of Withdrawal For Electronics
With the Regulation Amending the Regulation on Distance Contracts ("Amending Regulation") published in the Official Gazette dated May 24, 2025 and numbered 32909, important amendments were made regarding distance sales. The key changes introduced by the Amending Regulation are as follows:
-
30.5.2025
Alimony Against Inflation: Adjustmen of Alimony and the Issue of Payment in Foreign Currency
Alimony for supplementary welfare allowance and child support awarded by court judgment as a result of divorce cases is generally fixed at a certain amount and either remains the same over the years or is increased only within limited rates determined by the court. Similarly, the provisional alimony determined during the litigation process can become insufficient over time due to the prolonged duration of the proceedings and high inflation; this significantly hampers the effectiveness of alimony enforcement.
-
23.5.2025
Right To Compassionate Leave: Duration, Implementation And Assessment
Legal Basis and Definition of Compassionate Leave: In situations where an employee is unable to perform their work obligation due to certain personal circumstances in which, pursuant to the principle of good faith, the employer cannot reasonably expect the employee to work, the employee must be deemed to be on justified leave. Compassionate leave was introduced by Law No. 6645 in 2015 and is regulated under Additional Article 2 of the Turkish Labour Law No. 4857.
-
20.5.2025
The Right to Be Forgotten in the Context of Search Engines
IWith the rapid advancement of technology, personal data is increasingly recorded in digital environments and can be stored for long periods of time. This situation causes individuals' past negative experiences or changing opinions over time to remain constantly accessible. In particular, search engines make personal data widely accessible by indexing results that appear when searching individuals by their first and last names. Within this context, the "Right to Be Forgotten" stands out as the right of individuals to request the deletion of their personal data or the restriction of access to it in digital environments.
-
16.5.2025
The Penalty Clause in Turkish Law, Reduction of the Penalty Clause, and Practial Interpretations
One of the fundamental concepts of contract law, "penalty clauses" function as an important security for the creditor in the event that the debtor fails to properly perform their obligation. As an extension of the principle of freedom of contract, the parties may agree in advance to the payment of a specific amount in case the obligation is not performed at all or not performed correctly, thereby encouraging performance and easing the burden of proof for any damages that may arise.
-
13.5.2025
A Review on US Customs Tariffs and Its Impact on M&A Transactions
US President Donald Trump recently announced a "declaration of economic independence". Accordingly, a reciprocal tariff on all countries came into force. The tariff rate for Turkey was set at 10%, i.e. the minimum rate.
-
12.2.2025
An EMRA Decision: Capital Increase Obligation for Electricity Market Companies in Share Transfers to Foreign Investors
1. Current Regulation The Energy Market Regulatory Authority ("EMRA" or the "Authority") regulates the transfer of shares in the capital of companies operating in the electricity market under Article 57 of the Electricity Market Licence Regulation ("Regulation").
-
29.1.2025
Turkish Competition Board Mergers And Acquisitions Outlook Report For 2024 Has Been Published
On January 7th, 2025, the Turkish Competition Authority has published the Report prepared by the Competition Board on Mergers, Acquisitions And Privatisation Transactions in 2024 ("Report").
-
22.11.2024
The Procedure of Sale by Auction and The Legal Aspect of New Regulations Brought by the 9th Judicial Package
By new regulations brought by the 9th Judicial Package, a new legal frame for the sale of seized goods electronically is instructed according to Enforcement and Bankruptcy Law Article 111/b. Transactions about the sales of seized goods are made via a sale portal integrated with the National Judicial Network Information System (UYAP) by auction. However, because of the legal gaps of the law, an application about the sale transactions cannot be displayed. The amendments introduced by legislators to the law regarding electronic sales in the 8th and 9th Judicial Packages, as well as the newly established regulations, are considered an important step toward making foreclosure processes faster and ensuring that sales transactions are conducted in a safer and more transparent environment.
-
15.11.2024
Law Numbered 7531 On Amendments To Certain Laws Was Published
Law1 No. 7531 on the Amendment of Certain Laws ("Law"), also known as the 9th Judicial Package, was published in the Official Gazette dated 14.11.2024 and numbered 32722 and contains significant amendments to 17 different laws.
-
13.11.2024
E-Government Era Begins In Lease Agreements!
The Ministry of Treasury and Finance ("Ministry") announced in the 2023-2025 period of its 2022 Action Plan for Combating the Informal Economy ("Action Plan") that lease agreements could be concluded through the e-Government portal to support the decision-making processes of the parties involved and conduct risk analysis studies. The first phase of this activity was launched on November 4, 2024, through the e-Government portal, and the second phase is expected to be implemented by the end of the year.
-
11.11.2024
A New Era in Digital Markets: The Competition Authori's The Competition Authority's 2024-2028 Strategic Plan Published
The Competition Authority ("the Authority") has published its 2024-2028 Strategic Plan ("the Strategic Plan") with the aim of adapting to the rapidly evolving dynamics of digital markets and maintaining a competitive economic order. Developed in light of recent shifts in the global competitive environment, the Strategic Plan focuses on new regulations in digital markets and emerging technologies. The Authority aims to ensure fair and competitive markets through this plan, with a clear focus on enhancing consumer welfare.
-
31.10.2024
Public Announcement on Standard Contract Notification Module Published
Public Announcement on Standard Contract Notification Module published on 24.10.2024 on the official website of Personal Data Protection Authority ("Authority"). By the decision dated 17.10.2024, the Personal Data Protection Board ("Board") created "Standard Contract Notification Module" ("Module") in order to carry out standard contract notification processes in a faster and more efficient manner and decided that the notifications could also be carried out online via the Module.
-
28.10.2024
Warning To Research Companies: Inform First, Then Obtain Consent
After the number of complaints to the Personal Data Protection Authority ("Authority"), the Authority published a Public Announcement on "Personal Data Processing Activities of Research Companies by Using "Random-Digit Dialing as a Method of Telephone Sampling" for the purpose of Statistical Research" ("Public Announcement").
