The Principle of Causality in Appeal under the Law of Civil Procedure
Hilal Ünal KayaAlthough the methods used are different, in fact, every proceeding procedure aims to establish justice as complete as possible by reaching the most accurate decision. However, such an aim does not prevent the imposition of some restrictions on proceedings since the dispute has to be resolved within a certain time and within reasonable costs and labor. The main matter is where the restriction imposed shall commence and end. In this context, the subject of this article is the principle of causality and its framework, which is one of the crucial restrictions imposed on the proceeding of the appeal. The rule of dependency for the reason in appeal cases is in close relation with the necessity of justifying the appeal requests on the one hand, and the principle of disposition and the prohibition of adjudication on the other. Reasoning is important, as it guides the court conducting the appeal review and allows the opposing party to defend. The principles of disposition and prohibition against adjudication are two important principles that constitute the boundaries of the appeal review. In our study, firstly, the reasoning rule will be examined, and then the regulation of the rule of dependency for the reason in the Turkish Code of Civil Procedure and its reflections in judicial decisions will be discussed. Also, the solutions developed by the Court of Appeal to eliminate the drawbacks that may arise from the rule of dependency for the reason will be evaluated. Subsequently, the connection of the rule of dependency for the reason and the principle of disposition and the prohibition against adjudication will be discussed, and our evaluations will be included in the conclusion section.
Medeni Yargıda İstinaf Sebepleriyle Bağlılık Kuralı
Hilal Ünal KayaKullanılan yöntemler farklı olmakla birlikte, aslında her yargılama usulü, en doğru karara ulaşarak adaletin mümkün olduğunca eksiksiz tecelli etmesine yönelmiştir. Ancak bu hedef yargılamaya birtakım sınırlamalar getirilmesine de engel değildir; zira uyuşmazlık belirli bir süre içerisinde, makul masraflar ve emek dâhilinde çözüme kavuşturulmak durumundadır. Asıl sorun, getirilen sınırlamanın nerede başlayıp bitmesi gerektiğindedir. Bu çerçevede makalenin konusunu da istinaf yargılamasına getirilen önemli sınırlandırmalardan birini oluşturan sebeple bağlılık kuralı oluşturmaktadır. İstinafta sebeple bağlılık kuralı, bir yandan istinaf taleplerinin gerekçelendirilmesi gerekliliği ile diğer yandan da tasarruf ilkesi ve aleyhe karar verme yasağı ile yakın ilişki içerisindedir. Gerekçelendirme, istinaf incelemesini yapan mahkemeye yön göstermesi ve karşı tarafa savunma imkânı tanıması nedeniyle önemlidir. Tasarruf ilkesi ve aleyhe karar verme yasağı ise, istinaf incelemesinin sınırlarını oluşturan diğer önemli iki ilke olması nedeniyle konumuz bakımından önem arz eder. Çalışmamızda öncelikle gerekçelendirme kuralı incelenip, sonrasında sebeple bağlılık kuralının Hukuk Muhakemeleri Kanunu`ndaki düzenlemesi ve yargı kararlarındaki yansımaları ele alınacaktır. Bu esnada, Yargıtay’ın sebeple bağlılık kuralından doğabilecek sakıncaları bertaraf etmek için geliştirdiği çözümler de değerlendirme konusu yapılacaktır. Devamında, sebeple bağlılık kuralının tasarruf ilkesi ve aleyhe karar verme yasağı ile bağlantısı ele alınacak olup, sonuç kısmında konuyla ilgili değerlendirmelerimize yer verilecektir.
Upon the application for appeal, the parties have the opportunity to obtain another decision that is favourable to them and more accurate, by opposing the court decision in which issues are found against them and which they find faulty. Within this opportunity, the court of appeal can re-investigate when necessary and revoke the first-instance court’s decision and make its own decision instead. When the relevant regulations of the Code of Civil Procedure numbered 6100 are examined, it is observed that the courts of appeal have been granted a very limited power of investigation (please review Article 355, 357 of the Code of Civil Procedure). In accordance with the principle of causality, which is one of the regulations in which the restriction is observed the most intensely, the court of appeal shall carry out its investigation based on the reasons of appeal, except for circumstances contrary to public order (Article 355).
The party requests of appeal must also submit the reasons for the appeal. Under sub-paragraph “e” of Article 342/2 of the Code of Civil Procedure which regulates the elements of the appeal petition, the reasons and the justification for the application are stated. However, when paragraph 3 of the same article is examined, a conclusion has been reached that, even if the reason is not submitted, if the identity of the party requests of appeal and the decision against which the party requests of appeal are stated, the Regional Court of Appeal shall investigate the decision of the first-instance court in terms of the violation of public order, by considering the merits of the lawsuit. However, once such conclusion has been considered along with Article 352 of the Code of Civil Procedure where the preliminary investigation is regulated, it causes a confusion. Thus, it is explicitly stated in the relevant provision that the lawsuit file, which is determined as complete, shall be taken into the main investigation (Article 352/3). Therefore, since an application petition, which does not include the reasons for the appeal, shall be considered as incomplete, the dismissal of the same due to procedural deficiencies at the preliminary investigation stage will be a more appropriate solution.
Although it is required to expect from the party requests of appeal that they submit the reasons for the appeal in the petition, this requirement is not a must of the appeal investigation to be restricted with the reasons submitted in absolute terms. Since the purpose of the proceeding of appeal is to eliminate the material and legal mistakes determined in the decisions of the first-instance court as much as possible and to provide a more effective legal protection to the citizens. Restricting the court of appeal with the reasons submitted by the parties leads to a conclusion to ignore some mistakes or deficiencies by the court, and such a conclusion is not compatible with the purpose of reaching more accurate and fair decisions by the court of appeal and the purpose of reaching the material truth of civil procedure law.
While evaluating the principle of causality, special attention shall be given to two issues. The first one of these two is the principle of not deciding beyond the request, which is a result of the disposition principle, which is also valid in the proceeding of appeal. In accordance with the principle of not deciding beyond the request, the court shall not be able to decide more than the party requests of appeal, even if the court determines a violation other than the reasons indicated by the petition of the party requests of appeal. The second issue required to be considered is the “prohibition of reformatio in peius”. As per this prohibition, even if a reason is determined against the party requests of appeal by the appeal court during its investigation, the appeal court shall not be able to make a decision that puts the party request of appeal in a more disadvantaged position than that of the decision of the court of first instance by taking such a matter against the party requests of appeal. Public order is also the only exception to both the principle of not deciding beyond the request and prohibition of reformatio in peius. To the extent that the principle of not deciding beyond the request and the prohibition of reformatio in peiuare are complied with, we are in the opinion that the principle of causality can be abandoned in the appeal.
