There Is No Mediation Requirement In Negative Determination Cases Arising From Labour Contracts
15th Civil Chamber 2020/2937 E. , 2021/864 K.
“Case Law Text”
COURT :… Regional Court of Appeal …. Civil Chamber
At the end of the trial of the … determination case between the parties, the judgement given for the dismissal of the lawsuit for the reasons written in the judgement was examined, the file was examined, the necessity was discussed and considered.
– DECISION –
The plaintiff’s attorney claimed that a work contract was concluded with the non-suiting contractor, a contract was signed between the defendant subcontractor and the contractor and some of the works were transferred to the defendant, that his client suffered great damage due to the defendant’s wrongful termination of the contract, and that his client was not indebted to the defendant due to the termination of the contract to which his client was not a party.
The court of first instance decided to dismiss the case due to the lack of a cause of action pursuant to Article 115/2 of the CCP on the grounds that … in accordance with Article 5/A of the TCC No. 6102 and the provisions of paragraph 2 of Article 18/A of the Law No. 6325 … applying to the mediator before filing a lawsuit in the determination cases is a condition of litigation.
An appeal was filed against the decision by the plaintiff’s attorney … Regional Court of Appeal …. Pursuant to Article 5/A added to Article 5 of the TCC by Article 20 of the Law No. 7155, it was decided to reject the appeal on the grounds that … applying to the mediator in the determination cases is a condition of litigation.
The decision was appealed by the plaintiff’s attorney.
The lawsuit is about the determination of the lack of indebtedness due to the termination of the work contract to which the plaintiff was not a party.
The legal protection request directed to the court is characterised as a lawsuit.
… the determination case is expressed in Article 106 of the CCP No. 6100. In addition, Article 72 of the EBL regulates a special type of … determination action in terms of enforcement law.
Article 106 of the CCP provides that the court may be requested to determine the existence or non-existence of a right or legal relationship, or whether a document is forged or not.
Article 72 of the TCC No. 2004 states that “The debtor may file a lawsuit for determination … to prove that he is not a debtor before or during the enforcement proceedings.”
Article 18/A of the Law No. 6325 on Legal Disputes … “(1) If the application to the mediator is accepted as a condition of litigation in the relevant laws … the following provisions shall apply to the duration of the lawsuit.”
Article 5/A of the TCC: “It is a condition of litigation that the mediator has been applied to before filing a lawsuit for receivables and compensation claims, the subject of which is the payment of a certain amount of money, from the commercial lawsuits specified in Article 4 of this law and other laws.” It contains the provisions.
… The book titled “The Condition of Litigation in Commercial Disputes …” published by the … Ministry of … General Directorate of Legal Affairs … Department includes the opinion that mediation is a condition of litigation in … determination and restitution cases.
… determination case is a special type of determination case regulated under Article 106 of the CCP and Article 72 of the EBL. In these cases, it is requested to determine that a certain amount of money is not owed, and as a result of the lawsuits, a negative judgement is established regarding the part that is not owed. Although this judgement constitutes a final judgement between the parties, it is in the nature of a determination judgement that does not allow for performance. Article 5/A of the TCC stipulates that the payment of a certain amount of money, receivables and compensation claims are subject to mediation before the lawsuit is filed. As stated above, the … determination cases specified in Article 106 of the CCP and Article 72 of the EBL are negative determination cases that do not contain a performance clause. In this respect, the justification of “obtaining the receivable as soon as possible”, which the legislator intended in Article 5/A of the TCC, cannot be a justification for … determination actions. As a matter of fact, it is stated in the doctrine that … determination actions are not subject to mediation, … forcing the debtor to apply to the mediator in determination actions would mean depriving him of the right to file a determination action before the enforcement proceedings, since the application to the mediator would not stop the enforcement proceedings, and that he would not be able to stop the enforcement proceedings precautionarily by depositing 15% collateral, which is contrary to the freedom to seek rights. (…:Prof. Dr. …., Prof. Dr. …, Prof. Dr. …, Prof. Dr. …, Prof. Dr. … in Civil Disputes … 2nd Edition Sh.189-191) (Prof. Dr. … Some thoughts on the Condition of Action … … Association … March- April 2020 Sh.111 -141)
In addition, it is obvious that it is not possible to go to mediation in … determination cases filed pursuant to Article 89 of the EBL and Articles 211 et seq. of the CCP.
Pursuant to Article 5/A of the TCC, in order for mediation to be a condition of litigation, (1) the subject matter of the lawsuit must be the payment of a sum of money, and (2) this claim must be asserted as a receivable and compensation in a lawsuit. As explained above, it is understood that the conditions specified in the law are not present in … determination cases. If the legislator wanted to subject … determination actions to compulsory mediation, he would have expressed this clearly. As explained above, it is not possible to include … determination actions within the scope of Article 5/A of the EBL through interpretation.
In the light of all these reasons, it should be concluded that applying to the mediator before filing a lawsuit in … determination cases is not a condition of litigation.
In the concrete case, the plaintiff has requested the determination that he is not indebted to the defendant due to the termination of a contract to which he is not a party, i.e. … has filed a case for … determination. The court of first instance decided to dismiss the case procedurally on the grounds that the application to the mediator is a condition of the lawsuit in … determination cases, and upon the appeal of the decision, the … Regional Court of Appeal …. Civil Chamber rejected the appeal on the merits. As explained above, since the application to the mediator before the lawsuit is not accepted as a condition of the lawsuit in … determination cases, it is necessary to decide to overturn the decision in favour of the plaintiff.
CONCLUSION:
For the reasons explained above, the appeal request of the plaintiff’s attorney is accepted and the decision of the … 1st Commercial Court of First Instance is reversed, the decision of the … Regional Justice …. It was decided by majority of votes on 15.03.2021 to lift the decision of the Civil Chamber, to send the file to the court of first instance to examine the merits of the case in accordance with Article 373/1 of the CCP, to send a copy of the decision to the Regional Court of Justice, and to return the paid advance fee to the appellant upon request.
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