HUKUKA GİRİŞ

There are three main sources of the civil procedure in Turkey. The essential source of the civil procedure in Turkey is the Hukuk Muhakemeleri Kanunu (Code of Civil Procedure –CoCP-). 

The second source of Turkish civil procedure is the Court of Cassation (CoC) opinions. Since Turkey does not have a case-law legal system, the source value of the CoC opinions is mainly ancillary to the statutes, with the exception of “consolidation of opinions”, possessing the power of a statute, which is very rarely issued by the CoC.

Third source of Turkish civil procedure is the legal literature.

The correct answer is A.

Circuit courts of appeals (bölge adliye mahkemeleri) are the intermediate level courts in Turkish civil judiciary. These courts had been established in 2004 and became operational in 2016. There are 15 circuit courts of appeals, of which seven are operational as of 2017. These courts are currently situated in Ankara, Antalya, Erzurum, Gaziantep, İstanbul, İzmir and Samsun. The most essential duty carried out by the circuit courts of appeals is the intermediate appellate review of final decisions rendered by the courts of first instance in their respective jurisdictional areas. They also possess a very limited subject-matter jurisdiction as a court of first instance regarding some civil disputes.

The correct answer is C.

Any person having the capacity to conduct civil proceedings may file an action and manage it personally or through an attorney that represents her. A power of attorney is required for party representation. 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 (art. 73). The attorney is required to present the original power of attorney or the true copy of the original certified by her to be put in the case file of the action or the compulsory enforcement procedure in all actions and proceedings that she files or manages (art. 76).

The correct answer is B.

In a 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. 

An action in which the court is requested to sentence the defendant to give or perform, or avoid from doing something is an action for performance. 

An action in which the court is requested to create a new legal status, or modify the substance of an existing legal status or terminate it is a constructive action.

An action through which the plaintiff asserts multiple demands against the defendant in the same complaint is an action with gradual demands.

An action through which the court examines the existence of procedural requirements during all stages of the action ex officio is related with procedural requirements.

The correct answer is B.

The procedures defined in the first four options are duties of the court in the preliminary action. Amendment is a procedure in its own right which follows the trial in general.

Thus, the correct answer is E.

The person who is summoned as a witness may refuse to testify under circumstances that are expressly stated by the Statute. Reasons for refusal to testify are divided into three categories:personal reasons, confidentiality and danger of harm to one’s interests.

The correct answer is D.

Appellate remedies are generally divided into two categories: ordinary appellate remedies and extraordinary appellate remedies. Ordinary appellate remedies are the remedies to be exhausted before a decision becomes unappealable. Intermediate appeal and appeal are the ordinary appellate remedies. Extraordinary appellate remedies, on the other hand, are the remedies that may be applied after the decision becomes unappealable; therefore, they remove res judicata. There is only one real extraordinary appellate remedy in civil litigation: the renewal of proceedings (yargılamanın iadesi).

The correct answer is C.

Alternative dispute resolution methods currently implemented in Turkey are mainly conciliation and mediation. 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 no. 6235 (LMCD) is the Statute that regulates institutional mediation in Turkey.

The correct answer is A.

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.

If a debtor becomes insolvent, this insolvency must be resolved for better or worse. Therefore, there are different courses that may be pursued or utilized according to the attributions of the debtor or the debts. Debts may be restructured, bankruptcy may be postponed, or if all else fails, the assets of the debtor may be liquidated and her creditors get to be compensated. These methods constitute collective enforcement.

The correct answer is D.

The debtor may also file a proper negative declaratory action (menfi tespit davası) before or during the enforcement procedure. The criterion to distinguish the filing of this action from the action that we are going to discuss next, the action for restitution (istirdat davası), is whether the obligation is performed; regardless it was directly paid or paid with the liquidation of the attached assets of the debtor. In first case, a negative declaratory action, and in second case an action for restitution must be filed by the debtor.

If the credit is paid, the debtor must file an action for restitution in order to retrieve it. In addition, if the payment was made during the negative declaratory action, said action automatically transforms into an action for restitution. Unlike the negative declaratory action, the action for restitution is an action of performance; the debtor (now the plaintiff) demands the return 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.