General Assembly of Civil Chambers 2017/1854 E. , 2019/1096 K.
CCP 402
The difference between a request for discovery and a request for discovery of evidence
Determination actions, on the other hand, are actions to determine whether a right or a legal relationship exists, or whether a document is forged or not. The action for determination is generally regulated under Article 106 of the CCP No. 6100, and there are also some special provisions regulating actions for determination (e.g. Article 26 of the TCC, Article 56/1-a of the TCC).
The existence of a right or a legal relationship or the forgery of a document may be requested from the court through a declaratory action; therefore, only rights or legal relationships constitute its subject matter. Even if they are important for a legal relationship, material facts (events and facts) alone cannot constitute the subject matter of the action for determination (Art. 106/3 CCP). Likewise, it is necessary not to confuse the action for determination of evidence (Art. 400-405 CCP), which is applied before the time for examination due to its loss or impossibility of application, and the action for determination (Art. 400-405 CCP), which aims to secure it in a sense, should not be confused with the action for determination. As a matter of fact, in the preamble of Article 106 of the CCP No. 6100, it is stated that “Discovery actions are a type of action that is frequently applied in practice. Most of the times, they are confused with the institution of evidence determination, which is a type of temporary legal protection. With this general definition, it has been clarified by eliminating the hesitation in practice that declaratory actions are permissible in our law and that it is a completely different institution from the determination of evidence”, and it has been pointed out that if it is requested to determine the material facts alone, it is necessary to apply to the determination of evidence institution, not to the declaratory action. The purpose of the plaintiff and therefore the result of the claim is to determine the existence or non-existence or the content of a right or legal relationship, and the existence or non-existence of a right or legal relationship alone is not sufficient for filing a declaratory action. Furthermore, in order for the declaratory action to be heard (to enter the merits), the plaintiff must have a current legal interest worthy of protection in the immediate determination of the existence or non-existence of the right or legal relationship (Art. 106/2 of the CCP).
The existence of legal interest in the immediate determination of a legal relationship depends on the existence of the following three conditions: 1) a right or legal status of the plaintiff must be threatened by a current danger (Art. 106/2); 2) the legal status of the plaintiff must be in doubt due to this threat and this issue must be of a nature that may harm the plaintiff; 3) The declaratory judgement, which has the effect of a final judgement and does not authorise enforcement, must be capable of eliminating this danger. In an action for declaratory judgement, unlike an action for performance and an action for construction, it is not assumed that the plaintiff has such an interest. In the declaratory action, the plaintiff must prove that the damage caused by the dangerous or doubtful situation in question can only be eliminated by the declaratory action. Because a declaratory action can be brought before a legal situation or right has been denied or violated, i.e. before any damage has occurred, it has emerged as an exception to the requirement that the interest must have arisen and be current (Arslan, R./ Yılmaz, E./ Taşpınar Ayvaz, S.: Civil Procedural Law , Ankara 2017, p.287).
Accordingly, a right or legal status of the plaintiff must be threatened by a current danger; due to this threat, the legal status of the plaintiff must be in doubt and this issue must be of a nature that may harm the plaintiff; the declaratory judgement, which has only the effect of a final judgement and does not authorise enforcement, must be suitable to eliminate this danger. If the legal protection sought by the plaintiff through a declaratory action can be obtained through one of the other types of actions, then the plaintiff has no legal interest in filing a declaratory action (Arslan / Yılmaz / Taşpınar Ayvaz, pp. 296-297). As a matter of fact, the same principles are adopted in the decisions of the General Assembly of the Court of Cassation dated 22.05.2013 and numbered 2013/22-561 E., 2013/733 K. and dated 01.02.2012 and numbered 2011/10-642 E., 2012/38 K..
It is a condition of the lawsuit that the subject matter of the declaratory action is a right or legal relationship and that the plaintiff has a current legal interest in filing a declaratory action (Art. 114/1-h of the CCP). Whether these two conditions are present together in the determination lawsuit filed, as in other litigation conditions, should be considered by the court at every stage of the lawsuit, and in the absence of these conditions, the court should dismiss the lawsuit procedurally (due to the lack of litigation conditions) without examining the merits.
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