Evaluating Unseasonable (Untimely/Early) Litigation Within The Scope of Judicial Decisions
Muhammet Özekes, Nilüfer Boran GüneysuArticles 105 through 113 of the Turkish Code of Civil Procedure (CCP) regulate the following types of actions: the action for performance (Article 105), action for determination (Article 106), action for an indefinite receivable (Article 107), constructive action (Article 108), partial action (Article 109), aggregation of actions (Article 110), tertiary action (Article 111), optional action (Article 112), and class action (Article 113). However, these regulations are not restrictive. A type of lawsuit is also found that is not explicitly mentioned in the law but which is referred to as an unseasonal (untimely/ early) lawsuit, particularly with respect to judicial decisions and partially with respect to doctrine. This type of lawsuit has come to the agenda again with recent judgments. While accepted by judicial decisions, this type of lawsuit is not defined regarding judicial decisions, and the conditions of this lawsuit are not explained. Based on the decisions the unseasonal action is understood in brief to be used for receivables or claims that are not yet at the stage of being able to be claimed pursuant to various laws. In terms of unseasonal actions, a problem arises especially when addressing the dismissal of the lawsuit. This issue has been discussed and brought to the agenda, especially as the subject of a recent Unification of Jurisprudence Decision dated February 18, 2022. This study will attempt to: (1) define the concept of unseasonable lawsuit by taking into account the appearance of unseasonable lawsuit in judicial decisions, (2) determine this type of lawsuit and its nature, (3) examine the decision to be made in the presence of this lawsuit as well as the judicial expenses, and (4) evaluate the decisions in line with this.
Mevsimsiz (Zamansız/Erken) Davanın Yargı Kararları Kapsamında Değerlendirilmesi
Muhammet Özekes, Nilüfer Boran GüneysuHukuk Muhakemeleri Kanunu’nun 105 ilâ 113. maddeleri arasında dava çeşitleri yer almaktadır. Buna göre davalar; eda davası (HMK m 105), tespit davası (HMK m 106), belirsiz alacak davası (HMK m 107), inşaî dava (HMK m 108), kısmî dava (HMK m 109), davaların yığılması (HMK m 110), terditli dava (HMK m 111), seçimlik dava (HMK m 112) ve topluluk davası (HMK m 113) şeklinde sıralanmaktadır. Ancak bu düzenleme sınırlayıcı nitelikte değildir. Kanunda açıkça yer almayan, ancak özellikle yargı kararlarında ve kısmen de olsa öğretide “mevsimsiz (zamansız/erken) dava” şeklinde bir dava türü bulunmaktadır. Bu dava türü, yakın zamanda verilen kararlarla yeniden gündeme gelmiştir. Yargı kararları ile kabul edilen bu dava türü, yargı kararlarında da tanımlanmamış ve bu davanın şartları açıklanmamıştır. Kararlardan hareketle çok kısa olarak, mevsimsiz davanın “çeşitli kanunlar gereğince henüz talep edilebilme aşamasında olmayan” alacak veya talepler için kullanıldığı anlaşılmaktadır. Mevsimsiz dava bakımından sorun, özellikle davanın reddi söz konusu olduğunda karşımıza çıkmaktadır. Bu konu özellikle yakın zamanda verilen bir İçtihadı Birleştirme Kararının konusu olması sebebiyle yeninden tartışılmış ve güncellik kazanmıştır. Bu çalışmada yargı kararlarında mevsimsiz davanın görünümü dikkate alınarak mevsimsiz dava kavramı tanımlanmaya, bu dava türü ve niteliğinin belirlenmesine, bu davanın varlığı halinde verilmesi gereken karar ve yargılama giderlerinin incelenmesine, ayrıca bu yöndeki kararların değerlendirilmesine çalışılacaktır.
Articles 105 through 113 of the Turkish Code of Civil Procedure (CCP) regulate the types of lawsuits. However, these regulations do not have a limiting nature. A type of lawsuit is also found that is not explicitly included in the law and is referred to as an unseasonal (untimely/early) lawsuit, particularly with regard to judicial decisions and partially with respect to doctrine. The law makes no mention of this type of unseasonal lawsuit (untimely lawsuit/early lawsuit) nor provide any characterization. While accepted by judicial decisions, this type of lawsuit has also not been defined in these judicial decisions, and the conditions for this lawsuit are nowhere to be found. Based on the decisions, unseasonal lawsuits are understood to be used for receivables or claims that are not yet at the stage of being able to be claimed pursuant to various laws. In terms of unseasonal actions, a particular problem arises when addressing the dismissal of the lawsuit. This issue has been discussed and brought to the agenda, especially as the subject of a recent Unification of Jurisprudence Decision dated February 18, 2022. According to the judicial decisions, a lawsuit that is filed prematurely should be dismissed. However, whether the decision to dismiss this type of lawsuit is procedural or substantive is a matter of debate and needs to be evaluated. In judicial decisions, the unseasonal lawsuit is mostly dismissed procedurally on the basis of lack of legal interest. However, some judicial decisions have also observed that, in the event of the existence of an unseasonal lawsuit, a decision of dismissal is made based on the merits.
In terms of civil procedural law, the procedural or substantive dismissal of a lawsuit is subject to different conditions and consequences. In judicial decisions, however, the current aspect of the debate on whether to dismiss an unseasonal lawsuit procedurally or on its merits is based on the more practical and pragmatic reason of how to determine the attorney’s fees rather than on any fundamental approach or perspective. In the event that an unseasonal lawsuit is dismissed procedurally, a lump sum attorney’s fee will have to be decided upon in accordance with the Paragraph 2 of Article 7 of the Attorney Minimum Fee Tariff. If the case is dismissed on merits, a proportional attorney’s fee is to be awarded.
The Unification of Jurisprudence Decision dated February 18, 2022 decided that, in a lawsuit filed for a receivable that is not yet due, whether it is due or not is a matter to be evaluated ex officio and at every stage of the lawsuit within the scope of the legal interest as a condition of the lawsuit. With this case-law unification decision, a legal characterization has emerged where the due date is a litigation condition dependent on legal interest. Whether the receivable is due and whether the condition is met require an assessment of the substantive law. In an unseasonable lawsuit, the defendant asserts and proves that the claim is not yet due or that the condition has not yet been fulfilled. Claims regarding the maturity or condition may be asserted through defenses or objections. The ex officio consideration of these periods related to substantive law arises not from the fact that they are procedural conditions of action but from the fact that they have the nature of objections based on merit.
Explaining conditional or contingent receivables through the concepts of cause of action and legal benefit may cause problems in terms of enforcement and bankruptcy law. Enforcement law and civil procedural law are two complementary fields. Enforcement law is an extension of civil procedural law. If one accepts conditional receivables or due receivables as a condition of litigation, the enforcement office will have to take the condition and due date into consideration ex officio during the enforcement proceedings.
The decision to dismiss an unseasonal lawsuit only involves a determination that the receivable cannot yet be claimed. In an unseasonal lawsuit, the existence or nonexistence of the original receivable is not evaluated. A decision has not yet been made regarding the receivable whose right to be claimed has not yet occurred. Although not applicable to all unseasonal lawsuits, this study has the opinion that a lawsuit that is filed before the condition is realized or before the maturity date has occurred should be dismissed for the time being in terms of receivables subject to condition or maturity. In the case of a claim for a future performance, the claimant’s claim is not yet recognizable, and the claimant must wait until the due date. This decision is no final and definitive rejection of the claim. The dismissal of the lawsuit for the time being is a final procedural decision and not a final definitive rejection of the claim. Therefore, once the condition is fulfilled or the due date has been reached, the lawsuit may be reopened without facing the objection of res judicata. The procedural dismissal of unseasonal cases with a decision of dismissal for the time being will also resolve the issue of whether the attorney’s fee will be fixed or proportional. Because unseasonable lawsuits are generally evaluated based on the concepts of substantive law and not procedural law, the realization of the condition, the arrival of the due date, or the expiration of the period after the lawsuit is filed are considered as new facts. Therefore, after the lawsuit is filed, facts such as the realization of the condition and the maturity or expiration of the term can be asserted by the parties as a rule without being subject to any prohibition regarding changing the claim and/or defense.
