NEWSLETTER-2019-metin

237 CIVIL PROCEDURE LAWAND EXECUTION AND BANKRUPTCY LAW Summary of the First Instance Court Decision The first instance court granted two weeks as the definitive term for the plaintiff and warned the plaintiff’s attorney that in the absence of advance payment for evidence, the plaintiff would be deemed to have waived its right to refer to that evidence. However, the plaintiff’s attorney did not pay the advance on evidence for the expert examina- tion within the granted definitive term, but paid only after the expiry of a two-week period. According to the decision of the first instance court, if any of the parties relies on evidence, it is compulsory to pay the advance on this evidence. Therefore, as the expert review is re- quested in the statement of claim, the plaintiff must pay the advance on evidence. It was concluded in the decision that the plaintiff has re- nounced to rely on this evidence, since he did not deposit the advance on evidence within the definitive period, and the case was rejected on procedural grounds. Request for Appeal for the Sake of Law The applications to appeal for the sake of law have been made by the Ministry of Justice’s notification dated 02.08.2019 and numbered 1159/19357, and the notification by the Court of Cassation Prosecu- tor’s Office dated 21.08.2019 and numbered 2019/83943. Both au- thorities indicated that the cost required for the expert report on which the plaintiff relied should be accepted as advance on evidence; it is a mistake that the first instance court rejected the case on procedural grounds by accepting the required amount as advance on cost while it should have made a decision on the merits of the case with the present evidence, in accordance with Article 324 of the Code of Civil Proce- dure numbered 6100 (“CCP”) entered into force on 01.10.2011. Concepts of Advance on Cost and Advance on Evidence The Decision states the advance on costs is regulated as a cause of action under Article 114/1-g of the CCP and defines causes of action. Accordingly, causes of action are conditions that are required for the court to evaluate the merits of the case. In other words, causes of ac- tion are conditions regarding public order, not to bring an action, but for the court to examine the merits of the case.