The Authority that will Establish the Waiver and Termination of the Lawsuit due to Waiver after the Verdict in Code of Civil Procedure: Evaluations within the Scope of Law Amendment No. 7251

Abstract

Waiver of a lawsuit means the plaintiff to partially or completely withdraw from the claim stated in the petition. According to the regulations in the code, waiver can be given at any stage of the proceeding, until finalization of the form of verdict. While waiver is possible while the proceeding at the court of first instance is ongoing, it is also possible after the verdict is given, yet before applying to legal remedies or during when the lawsuit file is examined for remedies. If the lawsuit is waived while the proceeding at the court of first instance is ongoing, it should be terminated by a procedural decision of the court of first instance stating that the lawsuit was terminated due to waiver. However, there is no provision in our legislation about which decision will be passed, by which authority and in which manner if the withdrawal from the lawsuit is given within the legal time frame to apply to legal remedies after the verdict is given by the court of first instance or after the verdict is appealed through legal remedies. Therefore, there is an established practice of the Court of Cassation on the authority to be applied to and the verdict to be given by this authority if the lawsuit is waived by the plaintiff within the legal time frame for applying to legal remedies after the verdict or while the legal remedies are being examined. Article 57 of the Regulation on Code of Civil Procedure issued after the Code of Civil Procedures No. 6100 came into force on 01.10.2011, introduced for the first time a provision that the lawsuit can be waived after verdict is given by the court of first instance. After the repeal of the Regulation on Code of Civil Procedure, another regulation was introduced with the Regulation on the Regional Courts of Justice and Court of Original Jurisdiction and Chief Public Prosecutor's Office Administrative and Editorial Services (Art. 215). With the provisions of the regulation, a different and new regulation from the practice of the Court of Cassation was adopted by assuming that the court will examine the notice of waiver before applying for legal remedies and will give an "additional verdict" in this respect. After the CCO amendment that entered into force on 28.07.2020, provision regarding the case and the decision to be made were clearly introduced in the Law. Thus, the current situation in practice has been regulated in the CCP and brought into law. In our study will try to discuss which authority is to give the verdict that the lawsuit is terminated upon waiver of the lawsuit after verdict is given by the court of first instance but before applying to legal remedies, or while the lawsuit file is being examined according to the legal remedies in terms of the decisions of the Court of Cassation, opinions put forward in the doctrine and the provisions of the Regulations (former HMK Article 57; Regulations Art. 215) and within the framework of the CCP amendment that entered into force on 28.07.2020.