Decision of the Court of Cassation General Assembly on Civil Matters Regarding the Distinction Between the Decision of Resistance and a New Judgment

The Case at Hand and the Course of Proceedings

The dispute between the parties is an action for the annulment of objection. It is understood that the plaintiff initiated enforcement proceedings upon the non-repayment of the debt that he alleged to have given to the defendant cooperative, and that, upon an objection being lodged against this proceeding, he filed an action for the annulment of the objection. The court of first instance partially accepted the action, and upon the parties’ appeals, the specialized chamber quashed the decision.[1]

The first instance court, in response to this quashing decision, rendered its judgment by characterizing its decision as a “decision of resistance.” Upon the resistance decision being appealed, the matter came before the General Assembly.[2] During the deliberations held before the General Assembly, prior to the examination of the merits of the case, it was evaluated as a preliminary issue whether the decision referred to as a decision of resistance is of the nature of a new judgment based on new evidence and reasoning, and, depending on the conclusion to be reached therefrom, which authority is competent to conduct the appellate review.

The Concept of the Decision of Resistance

In Turkish law, if the lower courts (the court of first instance and the regional court of appeal) are of the opinion that the quashing decision of the Court of Cassation is not accurate, they may resist in their decision.

Article 373 of the Code of Civil Procedure No. 6100 (“CCP”) stipulates the compliance or resistance to the quashing decisions (in whole or in part) of the Court of Cassation. Accordingly, if the decision is resisted by the court of first instance or the court of appeal (the regional court of appeal), and such decision of resistance is appealed, the review shall be conducted by the chamber whose decision has been resisted. If the chamber deems the decision of resistance appropriate, it corrects its own decision; if it does not, it transmits the file to the General Assembly.[3]

The corresponding provision of the article in the repealed Code of Civil Procedure No. 1086 was contained in Article 439.[4] Accordingly, if the court of first instance or the regional court of appeal resisted in its decision and the decision was appealed, the review was conducted by the General Assembly.[5]

In the doctrine, it is stated by Kuru that the decision of resistance shall consist of two parts. Accordingly, Kuru states that in the first part, the reasoning as to the ground upon which the court has resisted its former decision shall be indicated,[6] and in the second part, the court shall reiterate the decision that has been quashed. Furthermore, he states that the court may either incorporate its former decision verbatim into the decision of resistance or may exercise its authority to expand the reasoning of its former decision.[7]

Whereas Pekcanıtez emphasizes that the court rendering a decision of resistance may not alter the decision it has previously rendered but may set forth reasoning that is different and new, and, in any event, that the decision of resistance must be drafted in accordance with the rules concerning the writing of judgments (Article 297 of the CCP), that it may not render a decision of resistance by merely referring to its previous decision.[8]

The Assessment of the General Assembly

The focal point of the Decision has been the question of whether the decision rendered by the court is, in fact, a decision of resistance.

In the Decision, it is stated that, in order to speak of the existence of a decision of resistance, the court must render its decision within the framework of the previous evidence, without gathering new evidence and by drawing inspiration from the quashing decision, and that although the court may expand its reasoning in comparison with its prior decision, it must not alter it.[9]

In addition, in the Decision, it is emphasized that, in the event the court renders its decision by relying upon new evidence or by altering its reasoning through drawing inspiration from the quashing decision or by assessing, in the manner indicated in the quashing decision, a matter that it had not previously addressed, it shall not be possible to speak of the existence of a decision of resistance.

Furthermore, in the Decision, it is stated that, according to the well-established jurisprudence of the Court of Cassation, even if a decision of resistance is rendered by the court, a decision rendered by discussing matters that ought to have been discussed in the quashing decision, by relying upon the research, examination, or newly gathered evidence conducted after the quashing, or by issuing a judgment based upon new and different reasoning that was not included in the prior decision and has not been subjected to the review of the specialized chamber, shall not be deemed a decision of resistance and shall be regarded as a new judgment.

In the context of the present case, it is stated in the Decision that, following the quashing decision, the court examined other court files and the commercial registry records and rendered a “decision of resistance” on the basis of the assessment it made as a result of these examinations.

Within this framework, it is assessed in the Decision that the decision characterized as a decision of resistance by the court of first instance is, in terms of procedural law, not a genuine decision of resistance; rather, it is of the nature of a new judgment based on new evidence and reasoning that had not been discussed and assessed in the initial decision. In this regard, it is concluded and opined that the authority to conduct the appellate review of the newly rendered judgment belongs not to the General Assembly, but to the specialized chamber.

Conclusion

The focal point of the Decision subject to review has been the question of whether the decision referred to as a “decision of resistance” is, in terms of procedural law, a genuine decision of resistance.

The Decision is noteworthy in that it first addresses the distinction between a decision of resistance and a new judgment and, depending on the conclusion to be reached therefrom, indicates the authority competent to conduct the appellate review.

From the assessments contained in the Decision, it is understood that the General Assembly is of the opinion that, in the event the court renders its decision by relying upon new evidence or by altering its reasoning through drawing inspiration from the quashing decision or by assessing, in the manner indicated in the quashing decision, a matter that it had not previously addressed, it shall not be possible to speak of the existence of a decision of resistance.

Accordingly, it must be borne in mind that the mere fact that a decision is designated by the court as a decision of resistance is not, by itself, sufficient for that decision to be deemed a decision of resistance, and that such decisions may be regarded as a new judgment.