Medeni Yargılama Hukukunda Hâkimin Türk Hukukunu Resen Uygulamasının Temeli: Vakıalar, Vakıaların Önemi, Vakıaların Çeşitli Yönlerden Sınıflandırılması ve Vakıaların Tespiti
Medeni yargılama hukukunda vakıalar her şeydir: Hak ve borçlar vakıalardan doğar, davanın sebebi vakıalardır ve hukukun resen uygulanması, diğer bir deyişle bizatihi yargılama faaliyetinin yapılabilmesi için vakıalara ihtiyaç vardır. Vakıalar hiçbir sınıflandırmaya sığmaz; önemli olan hukuken önemli, çekişmeli ve uyuşmazlığın çözümüne etkili olmalarıdır. Hukuken önemli, çekişmeli ve uyuşmazlığın çözümüne etkili olduğu takdirde her bir vakıanın ispatı gerekir ve bu vakıalar ispatlandığı takdirde Türk hukuku bu vakıalara resen uygulanmak suretiyle hüküm verilecektir (HMK m. 33; iura novit curia).
The Basis of Ex-Officio Application of Turkish Law By Judge In Terms of Civil Procedure Law: Facts, Importance of Facts, Classification of Facts from Different Aspects and Determination of Facts
In civil procedure law, facts are everything: Rights and obligations arise from facts, facts are the basis of an action and the ex-officio application of law, in other words the very act of judging, requires facts. Facts do not fit into any classification; what matters is that a fact is legally important, contested and effective for resolving the litigation. Provided that it is legally important, contested and effective for resolving the litigation, each and every fact should be proven, and when proven, a decision shall be made by way of an ex-efficio application of Turkish law to those facts (Art. 33 of Turkish Code of Civil Procedure; iura novit curia).
A fact is whatever happens, which makes it different from law, that is, that which should be or that which should happen. Not all facts are legally important facts that lead to legal consequences. Facts are either legal cause or legal consequence. Thus, facts can be a pre-requisite for legal consequences, and legal consequences that are also a consequence of some prior facts may appear asa pre-requisite for other legal consequences. For example, the expressions of will from two parties are the prerequsite of a contract. But a contract, which is the legal consequence of expressions of will from two parties, is the pre-requisite for the rights and obligations that arise from the contract. In civil procedure law, facts are everything: rights and obligations arise from facts. By fact, one should understand undertakings as well as acts of disposal, legal deeds, legal transactions and so on. Although there was once some controversy as to whether facts or legal concepts are the cause of an action, scholars and jurisprudence are now unanimous in the belief that facts are the cause of action. The concept of the cause of action – and therefore facts, matter in many questions of civil procedure law, such as pendency, res judicata, prohibition of extension or alteration claim and defense. Facts are the pre-requisite of an ex-officio application of law, in other words the very act of judging. Because, the very act of judging is actually the act of applying abstract rules of law to tangible facts. Although some authors suggest certain models, facts do not fit into any classification. What matters is that a fact is legally important. Words, gestures, contracts, writings, knowledge of something, will, intention, approval, validity of contract, existence of a certain right, status of being married, the headquarters of a company being situated in a certain place, that a person is shareholder of a company – all of these can be legally important facts and thus legal cause or legal consequence for other legal consequences. Each and every legally important fact should be proven if contested and effective for resolving the litigation, and when proven, a decision shall be made by way of ex-efficio application of Turkish law to those tangible facts (Art. 33 of Turkish Code of Civil Procedure; iura novit curia). Facts can be exterior facts. Legal deeds are a person’s intentional actions that lead to legal consequences without the need of an expression of will. Legal transactions are legal deeds that lead to legal consequences in the same direction of expression of will. There are some legal deeds that are expressions of will, but the legal consequence arises without the need of the expression of will being in the same direction. A basic example of this is creditor’s reminding a debtor to pay. By reminding a debtor to pay, the creditor only wants a practical consequence, which is the payment of a debt. But this reminder creates a legal consequence for the debtor - called default. Physical deeds create legal consequences without an expression of will. For example, the rights of an author arise directly and ipso iure from the very act of making an intellectual work. Expressions of thoughts, news, and feelings are generally not legally important, but exceptionally they can be legal facts. For example, for certain causes of divorce, the spouse who forgives the other has no right to divorce, so in this case the expression of forgiveness is a legal fact. Deeds that are compatible with law lead to convenient legal consequences. For example the payment of a debt terminates the debt. Deeds that are against the law are legal facts as well, so they lead to inconvenient legal consequences (sanctions), since rules of law mean rules that are sanctioned by state power. For example that a creditor does not accept payment leads to the creditor’s default. Facts can be interior facts, such as error, intention, cognition, knowledge of some point, good faith, bad faith. So, interior facts should be proven when they are legally important, contested and effective for resolving the litigation. Facts can be positive facts and negative facts. For example, the payment of a debt is a positive fact, but the non-existence of a debt is a negative fact. That someone does not know the existence of a fraud, that the subject-matter of a contract is impossible, that someone makes a legal transaction without having the right of representation, that someone has no fault, can all be legally important facts because rules of law directly attach legal consequences to those negative facts. Although sometimes it is hard and only possible in an indirect way, negative facts should be proven as well. Facts can be past, present and future facts. So, if the rules of law attach legal consequences to them, even future facts should be proven. For example, if someone claims compensation due to a loss of support, the future fact that support would have remained had the loss never occurred should be proven. Facts can happen before or after the action. If they happen before the action, they are the cause of action. It is however controversial whether the facts that happen after the action can or cannot be alleged in the action. Some authors claim that these facts can be alleged without prohibition of extension or alteration of claim and defense; others however claim that these cannot be alleged due to the prohibition of extension or alteration of a claim or defense. If facts happen before the action, they can be subject to res judicata, so they can no longer be alleged in a new action. If they happen after the action, however, they are the cause of another action. Facts can happen outside of or during the action. Although some authors claim that confession outside of court constitutes discretionary evidence, we are of the opinion that it is a fact that needs to be proven. To us, facts that happen during the action can be evaluated as facts of procedure, so that they lead to procedural consequences. With facts being either cause or consequence, procedural facts bring the whole proceeding together. But in some cases, they can lead to consequences in material law as well, and thus can have a double effect.