HUKUKA GİRİŞ - Deneme Sınavı - 4

I and II final decisions. But III is an interlocutary decision.

The Code of Civil Procedure (Hukuk Muhakemeleri Kanunu), the main source of the civil procedure in Turkey, was passed by the Parliament in the early 2011 and entered into effect in the late 2011. The correct answer is A.

Even though the number of parties is set to two in any action, each party may be comprised of multiple persons. This joinder may result from either procedural or substantive reasons. According to article 57 of the CoCP, multiple persons may jointly file an action or an action may be filed jointly against multiple persons if the right or the obligation that is the subject matter of the action between the plaintiffs or defendants is shared upon a reason other than joint ownership. This is known as the joinder of parties. The correct answer is B.

An 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)

A court requested to create a new legal status, or modify the substance of an existing legal status, or terminate it with constructive action. The correct answer is D.

As long as an instrument is suitable to prove a fact, it is admissible as evidence; provided that it possesses other requisites determined by the Statute. Types of evidence that are stated by the Statute include (1) documents (belge) and (2) deeds (senet), (3) oath (yemin), (4) witness (tanık), (5) expert examination (bilirkişi incelemesi) and (6) inspection by judge (keşif), and (7) Res judicata (kesin hüküm). Preliminary examination is not one of the types of evidence. It refers to the process through which the court examines procedural requirements and preliminary objections, determines boundaries of the dispute, carries out preparatory proceedings and proceedings necessary for the parties to present evidence and for the discovery of evidence, and encourages the parties for settlement or mediation. The correct answer is E.

Settlement (sulh) is an agreement made before the court between the parties to resolve the dispute partially or entirely in the course of a pending action. The parties may settle only actions regarding disputes on which they may freely act. Matters outside the subject matter of the action may also be included in the scope of the settlement. Settlement may be made at any time until the judgment becomes unappealable. The correct answer is A.

In intermediate appeal remedy, unlike the appeal, the higher court reviews the decision in question not only with regard to matters of law, but also with regard to matters of fact. The correct answer is C.

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). Conciliation power of the lawyers set out by the Law of Lawyers is the most important example of conciliation; and the Law on Mediation in Civil Disputes numbered 6235 (LMCD) is the Statute that regulates institutional mediation in Turkey. The correct answer is C.

The action for restitution is an action of performance; the debtor (now the plaintiff) demands the return of unlawfully and unnecessarily paid money to the creditor on account of the compulsory enforcement procedure. In order to file an action for restitution, a monetary performance must have been made during a compulsory enforcement procedure under the intimidation of the said procedure. The correct answer is B.

After the payment order becomes conclusive, either with failing to raise an objection or upon the final decision of the court resolving the objection, the creditor may request attachment from the agency. Attachment is the legal seizure of the assets and rights belonging to the debtor to be liquidated in a compulsory enforcement procedure, whose proceeds are then paid to the creditor. Since it is not a matter of collective enforcement, the attachment must be limited to assets and rights su icient for the credit claimed. The correct answer is D.

Liquidation starts in a bankruptcy agency, which is a public agency. Bankruptcy agency begins the liquidation proceedings by cataloguing the assets of the debtor and calling for the creditors to make their claims. In regular procedure, the liquidation is carried out by the participation of the creditors. The creditors hold a meeting and determine the candidate for the board of trustees. The compulsory enforcement court then appoints three persons from the candidates as the board of trustees. The board represents the estate of bankruptcy and carries out the liquidation process according to the CCEB and the decisions made by the creditors. An arbitrator does not play a role in this process. The correct answer is E.

Specialized courts are the courts established by various statutes and they have jurisdiction in actions with the specific subject matter they are established for. 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

Civil courts of first instance, which are the courts that resolve disputes initially, are established
as either general jurisdiction courts or specialized courts. General jurisdiction courts are established with the Law regarding Establishment, Jurisdiction and Powers of Civil and Criminal Courts of First Instance and Circuit Courts of Appeals (no. 5235),and they are comprised of civil courts of general jurisdiction (asliye hukuk mahkemeleri) and civil courts of peace (sulh hukuk mahkemeleri).

If time requirement is determined in terms of weeks, months or years, time expires at the end of the workday of the corresponding day of the last week, the last month or the last year to the day the time has started. If a corresponding day does not exist in the month that the time requirement expires, it expires at the end of the last workday of that month.

Weekends and official holidays are included in time requirements. However, if the last day of the time requirement corresponds to an official holiday (or the weekend), time expires at the end of first workday following the holiday.

There are four broad types of (or ways for) civil dispute resolution:

(1) The parties of the dispute may resolve the dispute among themselves. This may be carried out completely out of the legal
system or within legal boundaries with an agreement called settlement.

(2) The parties may refer to an independent and neutral third party and utilize her services, which is called an alternative
dispute resolution.

(3) Parties may choose to resolve their dispute not before the court but before an independent and impartial third party. However, in this type of resolution, the third party in question is called arbitrator and the resolution itself is called arbitration. This recourse is similar to litigation in court; however, unlike the
judiciary, the parties are free to choose the arbitrator and the procedure to be followed.

(4) Of course the final and by far the most popular method to resolve disputes is litigation. Litigation is the ultimate method
in dispute resolution and according to article 36 of the Turkish Constitution, everyone has the right to assert claims and
defenses, and a fair trial, as a plaintiff or defendant before judicial tribunals through utilizing legal means and proceedings; no
court may abstain from trying an action for which it is competent with regard to subject-matter jurisdiction and venue.

Incarceration is a punishment that might be given after a trial.

All courts have an administrative office supervised by a court clerk, with court stenographers, a bailiff, and other civil servants where necessary.

Article 50 of the CoCP defines the capacity to be a party and makes referral to the Turkish Civil Code. According to the provision, any person who has the capacity to possess civil rights, also has the capacity to be a party in an action. According to articles 8 and 28 of the Turkish Civil Code, every person has the right to possess civil rights.

According to the Statute, filing an action for damages against a judge regarding the exercise of jurisdiction is not permitted. If someone suffers damage from the actions of a judge regarding the
duty she carries out, for example, if the judge consistently refrains from determining a hearing date, the sufferer may file an action for damages against the State.

All family courts must employ a full time psychologist, a pedagogue and a social work specialist to assist the court.

The stages of the action in civil procedure are:
(1) Pleadings
(2) Preliminary examination
(3) Trial
(4) Oral arguments
(5) The judgment