HUKUKA GİRİŞ - Deneme Sınavı - 3

Burden of proof determines which party carries the duty to prove matters in an action. Both parties may present evidence of course, but if the matters in the action remain not proved at the end of the trial, one side must lose the action in any case. This side is the side that carries the burden of proof.

Data suitable for proving the facts of the dispute such as written or published texts, deeds, drawings, plans, outlines, photographs, films, visual or audio recordings as well as data stored in electronic media and similar data storage devices shall be considered as documents within the scope of the CoCP (art. 199). This is a very inclusive definition. The wording of the provision is not restrictive; therefore, any kind of device that can somehow store data and is suitable for proving a fact is a document.

However, expert reports are discretionary evidence written by experts and is a separate type of evidence.

Action (dava) is a legal remedy sought from the court by the person of a right that is claimed to be harmed, against the person who is claimed to have harmed the mentioned right.

There are three types of actions according to the legal remedy sought:

(1) Actions for performance (eda davaları)
(2) Declaratory actions (tespit davaları)
(3) Constructive actions (inşai davalar)

Any claim to be filed as action in the court must fall under one of these three categories.

Action for performance is an action in which the court is requested to sentence the defendant to
give or perform, or avoid from doing something (art. 105).

With declaratory action, the court is requested to determine the existence or nonexistence
of a right or a legal relationship, or whether a document is forged or not (art. 106).

With constructive action, the court is requested to create a new legal status, or modify the
substance of an existing legal status or terminate it. (art. 108).

There are two types of procedure sets in civil procedure: written procedure and simplified
procedure. The written procedure is the principle procedure.

In written procedure, there are five separate stages of action. The court is not permitted to
commence a stage before completing the previous one. The stages of the action in civil procedure are:

(1) Pleadings
(2) Preliminary examination
(3) Trial
(4) Oral arguments
(5) The judgment

An unappealable decision made in order to resume an action is an interlocutory decision. 

Procedural final decisions are the dismissal of the action on account of procedural errors. These decisions do not resolve the dispute; therefore, a new action may be filed again.

Final decisions of the court are generally categorized into three categories, which are

(1) procedural final decisions (or dismissal of the action on procedural grounds),

(2) the judgment (hüküm) (ruling on the merits),

(3) decisions declaring that the subject matter of the action has perished (therefore there is no need to render a judgment).

Judgments resolve the dispute and therefore constitute res judicata, upon which they become unappealable. If a party files another action identical to the previous one, the court must dismiss the action on account of a res judicata on
the matter.

In the event of a concern that the retrieval of the right can become extremely difficult or impossible on account of a possible
change in the current state, or an inconvenience or serious damages may occur because of delay, a provisional remedy regarding the subject matter of the dispute may be granted (art. 389). Provisional remedy may be granted to serve one of three purposes: performance (e.g. provisional alimony), protection (e.g. surrendering the subject matter to a trustee) or a temporary constructive measure (e.g. granting the custody of a child to a parent in divorce actions).

Types of evidence are:

(1) documents (belge)
(2) deeds (senet)
(3) oath (yemin)
(4) witness (tanık)
(5) expert examination (bilirkişi incelemesi)
(6) inspection by judge (keşif)
(7) Res judicata (kesin hüküm)

In civil procedure, types of evidence are divided into two categories according to their evidentiary
weight: definitive evidence and discretionary evidence.  In civil procedure, there are three types of evidence that are definite: Deed, oath and res judicata.

The intermediate appeal is not a complete renewal of the proceedings; it is carried out within the boundaries of the petitions of the parties regarding intermediate appeal. 

According to the CoCP, intermediate appeal is applicable against final decisions.  Decisions regarding actions concerning property rights in which the value or amount of the subject matter does not exceed a certain amount are unappealable. 

Application for intermediate appeal remedy must be made with a petition.

Time limit for application to intermediate appeal is two weeks.

Arbitration is a dispute resolution method in which the parties choose the arbitrator (or the
arbitrators) and the procedure to be followed. Otherwise, arbitration is similar to litigation in
courts as both methods determine which party is right and both render binding final decisions.

Alternative dispute resolution methods are means for the parties of the dispute to resolve the dispute among them rather than resorting to litigation mostly involving a neutral and independent third party. There are a number of institutional ADR methods implemented in civil procedure. ADR methods in currently implemented in Turkey may be divided into two broad categories, which are conciliation (uzlaştırma) and mediation (arabuluculuk).

If a debtor becomes insolvent, in order to avoid or escape bankruptcy, she may resort to
composition agreements. Even if the debtor is not eligible for bankruptcy, she may resort to
composition agreement. Composition agreements are debt restructuring agreements between the
debtor and her creditors.

There are three types of composition agreements:

(1) Simple composition agreement
(2) Composition in bankruptcy
(3) Composition by way of abandonment

Compulsory enforcement law in general comprises of two major parts. While first part of the
discipline deals with individual debt recovery and is called individual enforcement, the latter deals with the creditors and assets of a debtor as a whole and is appropriately called collective enforcement.

There are seven specialized courts in civil judiciary: (1) Cadastral courts (2) Labor courts (3) Compulsory enforcement courts (4) Consumer courts (5) Civil Courts of Intellectual and industrial property rights (6) Family courts (7) Commercial courts. Therefore, the correct option is B.

Military courts are not civil courts. Therefore, the correct option is E.

An attorney is the representative of a person. Therefore, the correct option is C.

Prosecutor is the representative of the state in a court. Therefore, the correct option is B.

In order to become a practicing lawyer, one must graduate from a law faculty, complete the required one-year apprenticeship and register in a bar association. Therefore, the correct option is D.

Article 50 of the CoCP defines the capacity to be a party and makes referral to the Turkish Civil Code. Therefore, the correct option is A.

Any person having the capacity to conduct civil proceedings may file an action and manage it personally or through an attorney whom she appoints. Power of attorney covers the power to carry out all kinds of party proceedings in order to manage the action, enforce the judgment, collect judicial costs and issue receipts regarding this collection, and the power to be the receiver of such proceedings until the judgment becomes unappealable. Therefore, the correct option is D.

There are three types of actions according to the legal remedy sought: (1) Actions for performance (2) Declaratory actions (3) Constructive actions. Therefore, the correct option is C.

With declaratory action, the court is requested to determine the existence or nonexistence of a right or a legal relationship, or whether a document is forged or not. Therefore, the correct option is B.