Waiver of the lawsuit and its consequences

24/2 of the Code of Civil Procedure No. 6100. In accordance with the principle of savings stated in the article, no one can be forced to file a lawsuit in his favor or to claim his rights. Again, in the 3rd paragraph of the same article, this time as a result of the principle of savings; "On the subject of the case, which the parties can freely dispose of, the power of disposition continues after the lawsuit is filed." regulation is included.

As can be clearly understood from the above articles - which are actually indicators of the basic principles of law - individuals are free to take an issue that concerns their rights and interests to the judiciary. This freedom also applies to the termination of the lawsuit. In other words, the party filing the lawsuit can terminate its lawsuit with its own free will. One of the ways to use this freedom is to waive the lawsuit.

Waiver in Article 307 of the Code of Civil Procedure No. 6100 titled "Waiver of the lawsuit"; It is defined as the plaintiff's partial or complete renunciation of the claim outcome.

As we mentioned above, waiver is one of the party transactions that puts an end to the lawsuit. As it is known and as we have included in our previous reviews, one of the mandatory elements that the plaintiff must include in the petition is the result of the request. In other words, when filing a lawsuit, the plaintiff must clearly state what he/she demands in the petition. It is this demand that constitutes the subject of the waiver. In order for the plaintiff to waive all or part of his claim, he must waive the lawsuit. It should be noted here that, as a rule, waiver of any case is possible, provided that there are exceptions. In other words, performance lawsuit, determination lawsuit, construction lawsuit, etc. All lawsuits may be waived. We will specify the types of cases that cannot be waived under a separate heading below.

In order for the lawsuit to be waived, the right must exist in the sense of substantive law. In this respect, the institution of waiver concerns substantive law. On the other hand, waiver also has aspects that concern procedural law. Because, as we stated above, waiver is a procedural action that terminates the case.

Difference between Withdrawal and Waiver of Case

Since the institutions of withdrawing the case, that is, giving up the case, and waiving the case can be confused with each other, we feel the need to make a brief explanation on this issue. In a Supreme Court decision on the subject, the distinction between the two institutions was made as follows:

"As it is known, waiver is a transaction that puts an end to the lawsuit. The plaintiff who waives his lawsuit waives the right that is subject to the demand conclusion section of the petition. Waiver cannot be subject to any conditions, and it is mandatory that the will to waive the lawsuit must be expressed in a clear and precise language. A waiver of this nature is not subject to the acceptance of the defendant party or the court and results in a final judgment.

On the other hand, withdrawing the lawsuit does not mean giving up the right subject to the lawsuit, the right to file a lawsuit in the same direction in the future is reserved and therefore, the withdrawal depends on the acceptance of the defendant. YHGK 2005/249

HOW TO WAIVER THE LAWSUIT?

According to Article 309 of the Code of Civil Procedure:

Waiver can be made by petition or orally during the trial. This form requirement is the validity condition of the waiver. The case may also be waived during discovery. Here, a waiver statement should be written in the discovery report and signed by the plaintiff.

For the waiver to be valid, it is sufficient to make a unilateral declaration of intent. The validity of the waiver does not depend on the consent of the other party and the court. It is sufficient for the waiver to reach the court. The court can only conduct a procedural review of the waiver. Here, the court checks whether the case is one of the cases that can result in waiver and whether the waiver has been made validly. If there is no deficiency here, it is decided to reject the case.

The disclaimer must be unconditional. No conditional waiver can be requested. A decision of the HGK on the subject is as follows:

"The plaintiff requested the determination of the annual paid leave periods, the payment of wages, additional payments, national holiday and general holiday wages and receivables arising from the collective bargaining agreement, and the defendants argued that the case should be rejected. After the expert report, the plaintiff's attorney submitted a correction petition dated 19.11.2014, reserving his rights regarding the surplus and stating that he would receive additional payments, bonuses and national holiday and general holiday wages based on the amounts calculated in the expert report. Moreover, in the reform petition, since the calculation was made with two options in terms of the unpaid fee receivable in the expert report, the plaintiff increased his demand based on the amount that was less in the expert report, provided that he reserved his rights regarding the excess in terms of this receivable.

The court decided to accept the case based on the amended amounts, and after the appeal of the decision by the defendants' attorneys, the plaintiff's attorney submitted his petition dated 10.07.2015 on "waiving reserved rights" to the file and stated in his petition that "...we will receive a fee of 53.559,81 TL which we have reserved and we have waived all our demands other than the provision and that we will not file a lawsuit or demand." and I request…” he declared.

With his statement in this petition, the plaintiff's attorney has not made a statement that he has waived his rights claimed in the case, in other words, his case. On the contrary, it is a statement that he has renounced his rights, which he reserves and has not yet been subject to litigation. In this case, it is not possible to say that the plaintiff's petition is an "unconditional" declaration of waiver. Because this statement put forward by the plaintiff in his petition is not related to the rights he requested in the case, but is related to the receivables he has reserved in his case.

In this case, the court's decision to resist that there is no waiver of the receivables in question is appropriate."

Waiver can be made through an attorney. However, the existence of special authority for waiver is required in the power of attorney. This rule also applies to the guardian.

In compulsory litigation the case can be waived with the common will of the litigation partners. Litigants do not have independent waiver authority. In voluntary litigation, independent waiver is possible. In this case, the waiver is valid only for the waiver.

Waiver Time

The case can be waived at any stage until the verdict is finalized. According to Article 310 of the Code of Civil Procedure:

Waiver and acceptance can be made at any time until the verdict becomes final.

If the waiver is made after the verdict is given, even if the parties have applied for legal remedies, the file will not be sent for legal remedy review and an additional decision will be made in line with the waiver or acceptance by the first instance court or regional court of justice.

If the waiver is made after the file is sent for appeal review, the Supreme Court of Appeals sends the file to the court that gave the verdict for an additional decision on waiver or acceptance, without reviewing the appeal.

A right that has not yet arisen cannot be waived.

CASES THAT CANNOT BE WAIVED

We stated above that, as a rule, waiver of every case is possible. But there are some exceptions to this general rule. The plaintiff does not have the right to waive in the following types of cases:

1. İzalae-i Şuyu cases, if other stakeholders wish to continue the case, the case can be continued.
2. Cases regarding the recognition of the right to social security cannot be waived.
3. Cases regarding name correction requests cannot be waived.
4. After the bankruptcy decision is made, the bankruptcy case cannot be waived.
5. Claims for compensation filed due to the judge's fault cannot be waived.

CONSEQUENCES OF WAIVER OF THE LAWSUIT

The case ends with a complete waiver of the case. In case of partial waiver, the lawsuit continues in terms of the part that was not waived. If the case is completely waived, the case will be rejected.

Waiver results in a final judgment. A waived case cannot be reopened.

It is not possible to waive the waiver. However, as we will explain below, cancellation of the waiver may be requested in case of conditions.

Fees and Expenses

In case of waiver, since the case will be rejected, the plaintiff must pay the trial fees and expenses. If the plaintiff waives at the preliminary examination hearing, he pays one-third of the decision and judgment fee, and if he waives it later, he pays two-thirds.

The party who declares waiver is sentenced to pay the trial expenses as if a verdict had been given against him in the case. If the waiver and acceptance are related to only a part of the result of the request, the penalty for litigation expenses will be determined accordingly.

Attorney's Fee in Case of Waiver

According to Article 6 of AAÜT:

"If the dispute is resolved due to the case remaining irrelevant, waiver, acceptance, settlement or any other reason until the preliminary examination report is signed, half of the fees determined by the provisions of this Tariff will be charged, and if the dispute is resolved after the preliminary examination report is signed, the full fee will be charged."

"At the end of the trial in accordance with the reversal order, the court decided to reject the case, as the plaintiff waived the case, and to give it to the defendant, with an assessment of 3,400.00 TL attorney fee, in accordance with the current attorney minimum fee tariff, for the benefit of the defendant who had him represented by an attorney. Pursuant to Article 6 of A.A.Ü.T., if the waiver occurs after the preliminary examination report is signed, the attorney fee will be paid to the defendant. Since the defendant had himself represented by an attorney, a relative attorney fee should be determined for the benefit of the defendant, but it was not deemed appropriate to award the fixed attorney fee without taking this issue into consideration, and therefore the verdict had to be reversed." Y14 HD. 2021/3945 K.

CANCELLATION OF WAIVER

We have stated above that it is not possible to revoke the waiver. However, as stated in the second sentence of Article 311, "In cases of disorder of will, waiver and cancellation of acceptance may be requested." In accordance with the provision, in cases of lack of will, the cancellation of the waiver may be requested. An example decision on the subject is as follows:

"Although the court gave a written decision on the grounds that the plaintiff renounced his case, the conclusion is not in accordance with the scope of the file. Namely, the plaintiff filed a lawsuit based on the legal reason of fraud, and declared that he renounced the case with the petition dated 19.10.2022, and then stated that his will was not to waive the case, the petition was submitted inadvertently, and his real intention was to continue the case.

It is wrong for the court to make a decision based on incomplete examination without determining the plaintiff's true will to waive the case. In order to reach the correct conclusion, Article 311 of the Code of Civil Procedure states: "In cases of disorder of will, waiver and cancellation of acceptance may be requested." Considering the second sentence: "Whether there is a lack of will in terms of the plaintiff's statement regarding waiver should be examined as a preliminary issue (incident) in accordance with Article 163 of Law No. 6100 and a decision should be made according to the result, but it was not appropriate to make a decision in writing." Y1HD. 2023/2150 K.