NEWSLETTER-2019-metin

239 CIVIL PROCEDURE LAWAND EXECUTION AND BANKRUPTCY LAW completed, the case shall be rejected due to the absence of the cause of action. (4) Each party shall deposit the advance determined by the court for the evidence for which it requests its presentation within a definitive period of time. Advance on evidence refers to the amo- unt to be paid by the parties within the definitive time specified by the court for covering the expenses of the evidence on which the parties rely. If the parties jointly request the presentation of the same evidence, they shall pay one-half of the required advance, each. If one party fails to meet its advance payment obligation, the other party may deposit it. The party who does not deposit the ad- vance on evidence shall be deemed to have waived the presentation of that evidence. The provisions of lawsuits and cases upon which the parties cannot dispose of freely are reserved. By evaluating the provisions of the CCP and the regulation to- gether, the Court of Cassation states that the advance on costs, which is a cause of action, should be taken into consideration for the liti- gation costs other than the cost to provide evidence. Pursuant to the Decision, it is not possible to evaluate the costs for hearing a witness, obtaining an expert report, or for the court to viewing within the scope of advance on costs as per Article 324 of the CCP. The previous deci- sions of the Court of Cassation confirm this situation 2 . Conclusion The Court of Cassation, with its decision numbered 2019/6552 E. and 2019/17198 K., has examined the concepts of advance on evidence and advance on costs, and concluded that they are separate concepts with different effects as to the course of the case. The advance on costs regulated under Article 114 of the CCP is a cause of action, while the first instance court must reject the case in the absence of advance pay- ment of costs on procedural grounds before examining the merits, it is not applicable for advance on evidence. In this case, the first instance court should make a decision on the merits of the case with the present evidence when it realizes that the advance on evidence has not been deposited by the related party within a definitive period. 2 Decision of the General Assembly of the Court of Cassation, E. 2017/2528, K. 2018/114, 07.02.2018; Decision of the 13th CC of the Court of Cassation, E. 2016/24537, K. 2017/2528, 27.02.2017.