AMENDMENT OF PLEADING AND ITS CONSEQUENCES 18 June 2021
I. What is Amendment of Pleading?
a) Definition of Amendment of Pleading
Amendment of pleading is a procedural action regulated in the Code of Civil Procedure. By this process, the parties have the opportunity to correct a procedural action they have made during the trial. This amendment of pleading can take place in the form of a full or partial amendment of pleading. Amendment of pleading constitutes an exception to the prohibition of expanding and changing the claim and defense, which has an important place in the Turkish Procedural Law. At this point, amendment of pleading is also a precaution against the loss of rights that the parties may suffer due to the prohibition of expanding and changing the claim and defense.
Amendment of pleading is concluded with the declaration of will of the party who will do this action. In other words, there is no need for the acception of the court or the other party. In cases where there is no prohibition of changing and expanding the claim and defense, or in cases where the other party's consent is available, it will be meaningless to apply for amendment of pleading. Likewise, if the documents which are in the case file contain material errors, the clear writing and calculation errors can be corrected until the final judgment is given. In this case, the operation of the amendment of pleading would be meaningless.
b) Actions that can be Regarded Within the Amendment of Pleading
By amendment of pleading, the parties can change the facts in the lawsuit petitions, the reason for the lawsuit, the result of the request. However, some situations where the amendment of pleading cannot be used are determined by law. According to the second paragraph of Article 179 of the Code, “However, the offer of the oath, the refusal of the oath, provided that the other party has declared that he will fulfill it before the correction, although the confession, witness statements, expert reports and statements, discovery and affidavit minutes have been fulfilled or have not been fulfilled yet. or its return cannot be invalidated by amendment of pleading”.
c) The Use of the Amendment of Pleading and Time for Its Use
The parties can apply for amendment of pleading only once with a declaration of will. For this reason, in cases that constitute an exception to the prohibition of expanding and changing claim and defense without amendment of pleading, applying to the amendment of pleading will harm the interests of the party.
The amendment of pleading can be made by the parties until the end of the inquirement. When the file is sent to the court of first instance after the reversal decision of the Court of Cassation or the removal decision of the regional court of appeal, amendment of pleading can be made until the end of the inquirement, if the court of first instance carries out an action regarding the inquirement. Amendment of pleading can be done orally as well as in writing. If the other party is not present at the hearing or if the correction request is not made during the hearing, the other party should be informed of the amendment of pleading.
d) Full Amendment of Pleading
An amendment of pleading for the overall of the case is possible to apply. In accordance with article 180 of the Code, the party declaring that amended the overall of the case has to submit a new lawsuit petition within one week from this notification. Otherwise, the amendment of pleading shall be deemed to have been used and the case shall be continued as if the amendment of pleading had never been made. As a result, if the plaintiff or the defendant files a counter-claim, has to arrange the petition from the beginning.
e) Partial Amendment of Pleading
Likewise, partial amendment of pleading for the case is also possible to apply. Pursuant to Article 181 of the Code, the party applying for partial amendment of pleading is given a one-week period to carry out the procedural action that it has been amended. If the amended action is not taken within this period, the case will be continued as if the amendment of pleading had never been made. As a result, the parties add new facts and claims to the case through partial amendment of pleading. Parallel to these, it is possible to change the subject of the lawsuit through amendment of pleading.
II. Consequences of the Amendment of Pleading
a) Legal Fee for the Amendment of Pleading
The legal fee for the amendment of pleading is regulated in the Code. But it should be noted here that; The subject of the amendment of pleading fee is not related to the demand for amendment of pleading, but the results of the conclusion of the amendment of pleading. Pursuant to Article 178 of the Code, the party that applies for the amendment of pleading is obliged to deposit, within one week, the payment of insurance is to be determined by the judge, in order to cover the litigation expenses made for the transactions that have become invalid due to the correction, and the damages that the other party has suffered or may suffer, within one week. Otherwise, amendment of pleading will not be considered as concluded. In the same way, if the monetary value of the subject of the claim is increased and a fee must be paid, this is also considered within the scope of the amendment of pleading fee.
b) The Effect of the Amendment of Pleading
The effect of the amendment of pleading is regulated in Article 179 of the Code of Civil Procedure. The amendment of pleading pursuant to paragraph 1 of the mentioned article shall result in the demise of all procedural actions from the point at which the party who made it will conclude it. In other words, after the amendment of pleading process has taken place, the action that constitutes the subject of the amendment of pleading is deemed to have never been done and the amended form is available. However, according to the results of the inquirement to be made after the amendment of pleading, if these processes do not need to be taken into account, they are also considered as not done.
III. Amendment of Pleading With Bad Faith
Finally, it should be mentioned that the possibility of trying to conclude the amendment of pleading process in bad faith by the parties. Accordingly, if it is understood by evidence or indications that the amendment of pleading was made with malicious thoughts such as prolonging the lawsuit or disturbing the other party, the court decides without considering the amendment of pleading. In addition, the judge condemns the person who applied for amendment of pleading in bad faith to pay all the damages suffered by the other party and to a disciplinary fine from five hundred Turkish Liras to five thousand Turkish Liras.
