Withdrawal or Waiver of Lawsuit in Turkish Law

What is Waiver of Lawsuit in Turkish Law?

Waiver of lawsuit, defined as partially or completely relinquishing the claim result, is typically executed by the plaintiff (CPC art. 307). If a counterclaim has been filed, the party originally in the defendant’s position in the main lawsuit can waive the counterclaim.

There are two distinctions between withdrawing a lawsuit and waiving a lawsuit. Firstly, the consent of the defendant is not required for a waiver, unlike withdrawal. Secondly, a withdrawn lawsuit can be reopened, whereas a waived lawsuit cannot. By withdrawing the lawsuit, the plaintiff is not waiving their right to future lawsuits; instead, they are temporarily suspending the current lawsuit.

It’s important not to confuse “waiver of lawsuit” with “acknowledgment agreement”: In a waiver, the dispute comes to an end, while in an acknowledgment agreement, the dispute does not end, only a partial agreement is reached.

Procedure for Waiving Lawsuit

According to Article 309/1 of the Civil Procedure Code, waiver can be done through a petition or orally during the trial process. For an attorney to waive a lawsuit, explicit authorization must be present in their power of attorney (CPC art. 74).

The statement regarding waiver of lawsuit is read and signed by the relevant party and recorded in the trial record (CPC art. 154/3).

Waiver must be unconditional and without reservation according to Article 309/4 of the CPC; because conditional statements would result in the dispute partially continuing, rendering the termination of the lawsuit incomplete.

Since waiver substitutes for a judgment, conditional waivers cannot be made. However, such a condition can be considered as a settlement offer.

Partial or complete waiver of lawsuit is possible. In complete waiver, since the claim result is entirely relinquished, the lawsuit is terminated in its entirety; whereas in partial waiver, only the portion waived ends the lawsuit, and the lawsuit continues for the remaining portion, thus, in partial waiver, the waived portion must be clearly indicated in the petition or record (CPC art. 309/3).

Until when can Lawsuit Waiver be Made?

According to Article 310 of the Civil Procedure Code, waiver can be made at any time until the judgment becomes final. Waiver is made through a unilateral, clear declaration addressed to the court by the plaintiff. The validity of waiver is not subject to the consent of the other party or the court, but rather, the court only examines whether the waiver complies with procedural rules.

 

Consequences of Lawsuit Waiver in Turkey

Waiver is an act that terminates the lawsuit by one party. In the former Law No. 1086, there was a regulation stating “Waiver… shall produce the legal consequences of an absolute judgment.” The generally accepted view in doctrine was that waiver only produces the legal consequences of a formal judgment, not constituting a material or formal judgment.

Because it is not a judicial decision terminating the lawsuit but rather a procedural act of the party. Materially, a final judgment is a legal reality granted to judicial decisions. Similarly, a formal judgment cannot be made in waiver. Since the lawsuit terminates by the will of the parties, there cannot be a technical judgment.

In this case, waiver is neither materially nor formally a judgment; however, it produces legal consequences like a formal judgment. Thus, there is no recourse to ordinary legal remedies against the decision determining that the lawsuit ended with waiver. According to Law No. 6100, waiver produces legal consequences like a final judgment (CPC art. 311). Therefore, it is emphasized that waiver does not have the nature of a final judgment but produces legal consequences like a final judgment.

 

How does the Judge Decide in Case of Lawsuit Waiver in Turkey ?

In case of waiver, a dismissal decision cannot be rendered. Because for a dismissal decision to be rendered, it is necessary for the claim result to be maintained and requested by the plaintiff. However, in case of waiver, the plaintiff has partially or entirely relinquished the claim result, and thus, the lawsuit has ended.

Therefore, it cannot be examined whether the plaintiff is right or wrong regarding the waived portion of the lawsuit. In this case, the court should only determine that the lawsuit ended due to waiver. Therefore, in case of waiver, a decision should be made that “there is no place for a decision as the lawsuit ended due to waiver.”

The party making the waiver statement is sentenced to pay the litigation costs as if a judgment had been made against them. If the waiver relates only to a part of the claim result, the imposition of litigation costs is determined accordingly (CPC art. 312/1).

If the plaintiff waives the lawsuit during the first session, one-third of the fixed decision and decree fees (dismissal fees) they would have to pay in case of dismissal are collected; if they waive later, two-thirds are collected (Court Fees Law art. 22).

The application fee remains with the plaintiff (waiver). If the waiver occurs before the fulfillment of the interim decision regarding the collection of evidence, half of the attorney’s fee in the tariff is imposed; if it occurs later, the entire fee is imposed against the plaintiff (Minimum Attorney Fee Tariff).

In case of waiver, litigation costs in favor of the other party and, if there is a lawyer in this context, the determination of attorney fees must be made.

 

Actions by the Party Terminating the Lawsuit

The waiver statement cannot be revoked. However, if there is a violation of procedural rules, legal remedies can be sought. For example, if the court misinterprets the plaintiff’s will as waiver or if an unauthorized attorney waives the lawsuit, or if the litigation costs are miscalculated, the plaintiff can resort to legal remedies.

In cases of mental incapacity, the annulment of waiver can be requested (CPC art. 311). If the declaration regarding waiver is impaired by a reason such as mistake, fraud, or duress, the party making the statement can file a lawsuit for the annulment of waiver within the framework of the rules of contract law, provided that they prove the reason impairing the will. The invalidity of the waiver can be asserted in the same lawsuit or in a separate lawsuit filed for the annulment of the waiver.

Lawsuits Not Terminated by Waiver

In general, waiver is possible for any type of lawsuit without any restrictions. Even for lawsuits that parties cannot freely dispose of, waiver is possible.

Therefore, waiver of lawsuit is not only applicable to lawsuits arising from matters over which parties can freely dispose, but it can be applied to any type of lawsuit. For example, the plaintiff can waive a divorce lawsuit they filed.

However, despite waiver, some lawsuits do not end; the judge is obliged to continue the lawsuit despite the waiver:

1- In lawsuits against the state due to the actions of the judge, waiver does not terminate the lawsuit.

2- In service determination lawsuits filed to determine the social security period, waiver does not terminate the lawsuit. According to the Court of Cassation, waiver of the right to social security cannot be made.

In these types of determination lawsuits concerning public order, the judge should not terminate the lawsuit due to waiver but should gather evidence on their own initiative and decide accordingly. Because by filing a service determination lawsuit, the Social Security Institution becomes aware of an employment relationship and, if necessary, automatically calculates and collects premiums through inspector examination.

Therefore, service determination lawsuits also directly concern the institution’s rights. On the other hand, the purpose of service determination lawsuits is to protect the social security rights corresponding to the services. Therefore, by waiving such a lawsuit, the plaintiff is not only waiving the lawsuit but also waiving the “determination of social security rights.”

3- Waiver cannot be made from an insolvency lawsuit after an insolvency decision has been made (Enforcement and Bankruptcy Law art. 165/5).

4- In bilateral lawsuits, waiver does not terminate the lawsuit. Because in bilateral lawsuits, both parties participate in the lawsuit as both plaintiffs and defendants. In fact, the term bilateral lawsuit is misleading; it gives the impression that unilateral lawsuits can also exist. However, in every lawsuit, two parties must be involved. The bilaterality here stems from one person having both the plaintiff and defendant status in the same lawsuit. The action for the elimination of the partnership (determination of shares) is a bilateral lawsuit. Therefore, it is possible for the defendant to continue in the lawsuit as the plaintiff.