Amendment In Civil Procedure Law

1. Definition and Concept

In Civil Procedure Law, amendment can be defined as a legal remedy that allows a party to completely or partially correct procedural actions (within the scope of the prohibition on expanding claims and defenses) without the consent of the opposing party or the approval of the judge, provided that the necessary expenses are paid and the action is taken in accordance with the method specified in the Civil Procedural Code numbered 6100 ("Code") within the time period specified therein.¹ Although we refer to it as correction, not every correction is amendment. For example, the correction of material errors (Article 183) or the correction of a judgment (Article 304), which are regulated in the same distinction as amendment in the Code, are very different from amendment.² Although we define amendment as the correction of procedural actions without distinction, there are many actions that cannot be performed through amendment. To briefly mention and give examples, the parties cannot use amendment in terms of jurisdiction and territorial jurisdiction, and voluntary party changes cannot be made because the method for this is specifically regulated in the Code. We can see the basic function of amendment as an exception to the prohibition on expanding or changing claims and defenses. In this article, we will talk in detail about the processes that are included in the scope of amendment and the processes that cannot be done through amendment.

2. Procedures Covered by Amendment

Through amendment, the parties can change and expand their claims on which they base their claims. For example, while the plaintiff may request the delivery of goods, they may amend their claim to request the price of the goods. An important distinction to be made is between facts not raised in the lawsuit and facts that did not exist before but arose during the lawsuit. Facts that existed previously fall within the scope of the prohibition on consolidation, and if the party wishes to bring them before the court, amendment is required. Regarding facts that arise later, the decisions of the Court of Cassation generally indicate that amendment is necessary for these facts to be included in the case. A Judgment Consolidation Decision ("JCD") accepts that facts that emerge after the lawsuit can be included through amendment without making any distinction.³ In doctrine, this and similar decisions are criticized. There are also views arguing that since the parties cannot do anything about facts that emerge later, these facts should be included in the lawsuit without the need for amendment.⁴

Another issue regarding facts is which facts should be considered new. If the plaintiff states all matter in their petition but wishes to include certain sub-facts in the proceedings when necessary, these should not be considered new facts. However, facts not mentioned in the petition and unrelated to the existing facts may be considered new, depending on the circumstances of the case. There will be no need for amendment in cases where the judge should already be aware of the facts or where the judge will investigate the facts on his own initiative.

If the parties' objections, which are not included in the file, are subsequently included in the case, even if they are understood from the file in terms of defenses, if they have not been put forward as a defense, recourse to amendment may be used. For example, even if the debt has been paid and terminated, if this matter is not understood in any way from the case file, the judge cannot take it into account, meaning that amendment must be used. If a matter that could constitute a defense is apparent from the file but has not been raised at all, it is again necessary to resort to amendment.⁵ Regarding the statute of limitations, the Court of Cassation stated in its previous decisions that the statute of limitations could not be raised by amendment.⁶ It is seen that the Court of Cassation has significantly changed its decisions, especially after the Code of Civil Procedure numbered 6100, taking into account the rationale of the Code. For example, in one decision, it ruled that "there should be no hesitation in stating that the statute of limitations is not an initial objection and can also be raised through amendment."

Amendment should certainly be used for the modification or extension of the current claim. However, the reduction of the claim should be evaluated differently in this regard. As a rule, the reduction of the claim is not related to amendment but to other procedural institutions such as withdrawal of the case, waiver, or removal of the file from proceedings.

Through amendment, the existing claim in the case may be increased, or a new claim may be added in addition to the existing claim. For example, in a claim for 10,000 liras, this claim may be increased to 20,000 liras through amendment, or another claim for damages of 5,000 liras may be added to the claim for damages of 10,000 liras. No distinction should be made in this regard.⁷ The Court of Cassation has issued different rulings on this issue, known as the accumulation of lawsuits. Some of its rulings accept that new claims can be added through amendment.⁸ Some of its decisions state that different claims cannot be brought to the lawsuit through amendment. The reasoning is based on the fact that a new lawsuit cannot be filed through amendment within an ongoing lawsuit.⁹ We also find it impossible to agree with the Court of Cassation decisions that severely restrict the addition of new claims. Here, especially in cases where it is possible to file multiple lawsuits or claims through the consolidation of lawsuits or the accumulation of lawsuits, the addition of a new claim through amendment should be accepted.¹⁰

3. Actions That Cannot Be the Subject of Amendment or Cannot Be Performed Through Amendment

The actions that cannot be performed through amendment are clearly listed in Article 179 of the Civil Procedure Code. These include confessions, witness statements, expert reports and statements, discovery and requisition minutes, and the offer, refusal, or restitution of an oath, whether fulfilled or not yet fulfilled, provided that the other party has notified the court before the amendment that they will perform the oath.

Some situations are not suitable for amendment. In some cases, amendment is not required and must be rejected due to lack of legal benefit and therefore is also not suitable for amendment. Amendment is not required in cases where the judge is not bound by the parties' request. Likewise, if the subject matter of the case is transferred, amendment is not possible because there is a specific provision in the Code. Amendment cannot be made in cases where the Code stipulates that it can only be done once. If the Code stipulates that it can only be done in a limited manner or within a limited time, it can only be done in that manner; it is not possible to circumvent the law. Furthermore, the prohibition on submitting a second witness list is not suitable for amendment, both because of its regulation in the Code and because it is accepted as a matter of public order. In the past, it was debatable whether a change of party could be made through amendment. However, with the special regulation made by Article 124 of the Code of Civil Procedure, a change of party can be made with the consent of the opposing party or, in certain cases, with the judge's approval.

Matters relating to substantive law cannot be changed through amendment. If a legal relationship for which payment in Turkish Lira was previously requested comes before the court, payment in foreign currency cannot be requested through amendment. Similarly, a terminated contract cannot be deemed not to have been terminated through amendment. Furthermore, the type of lawsuit cannot be changed through amendment.¹¹

4. Form of Amendment

The first moment when amendment can be made is when the prohibition on expanding and changing the claim and defense begins. The time limit for amendment is clearly regulated in the first paragraph of Article 177. Accordingly, amendment can be made until the end of the investigation. When an appeal is filed, there is a clear provision in the Code that amendment cannot be used at this stage. (m.357). The same rule applies in cassation. In cases where the file is returned to the court of first instance after the appeal, the provision in the Code is as follows: "When the file is sent to the court of first instance, if the court of first instance takes action regarding the investigation, amendment may be made until the investigation is completed." A Judgment Consolidation Decision related to this issue clearly states that amendment is not possible during the retrial after a reversal.¹² However, another JCD indirectly concludes that a new investigation will be initiated after a reversal and that amendment is also possible.¹³ As can be seen, there is no consensus on this issue.

If amendment is sought, a written or oral request to that effect is required. amendment is not subject to the court's approval. In the same case, each party may only seek amendment once.

The Court of Cassation has ruled that a response submitted after the deadline cannot be made valid through amendment. "The defendant may introduce a defense not raised in the response through amendment. However, if no response was submitted, this cannot be done. Since failing to file an answer actually means denying all of the plaintiff's claims, attaching such a strict consequence to failing to file an answer is open to criticism.

Amendment resulting in all procedural actions, including the statement of claim, being deemed not to have been taken shall be full amendment, while amendment resulting in procedural actions being deemed not to have been taken from the point specified by the party shall be partial amendment.¹⁴ Amendment sought to extend or partially change the claim shall be accepted as partial amendment. Sometimes it is difficult to determine this limit.¹⁵

5. Conclusion

Amendment is a legal remedy that allows procedural actions to be changed without being bound by the principle of concentration in a trial and allows new facts to be presented to the court. Substantive law cannot be the subject of amendment, and it may not be possible to use amendment in certain procedural actions specifically limited by Code. We see that the Court of Cassation has issued different decisions on similar cases in this regard. Each case must be examined individually based on the specific circumstances of the case, and it should not be forgotten that amendment is a single-bullet procedural weapon that must be used with great care.

Footnotes

1 Yılmaz O., Islah, JKİ 1958/12

2 Özekes M., Pekcanıtez Usul Medeni Usul Hukuku, 15. Bası, İstanbul 2017, p. 1486

3 İBK 04.02.1948, 10/3 (RG, 17.06.1948, S.6934)

4 Özekes, Pekcanıtez Usul, p.1492

5 Özekes, Pekcanıtez Usul, p. 1497

6 11.HD, 28.05.2004, 11314/6003

7 Özekes, Pekcanıtez Usul, p.1504

8 2nd HD, 22.06.2004, 4944/8237 (Kazancı)

9 10th HD, 26.09.2013, 24884/17392 – 6th HD, (Kazancı) HD, 29.01.2013, 18397/1205

10 Özekes, Pekcanıtez Usul, p.1507

11 Ast. Prof. Dr. Evrim Erişir, @evrim.erisir, Video on Matters That Cannot Be Changed by Amendment, Instagram, March 28, 2024

12 İBK, February 4, 1948, 10/3 (RG, June 17, 1948, p. 6934)

13 İBK, February 4, 1959, 13/5 (RG, April 28, 1959, S. 10193)

14 Tanrıver, Usul, p. 733-734

15 Özekes, Pekcanıtez Usul, p. 1537

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.