The Code of Civil Procedure provides a limited list of initial objections. Accordingly, the objection of jurisdiction in cases where there is no absolute jurisdiction rule, the objection that the dispute should be resolved through arbitration and the objection of division of labour are the first objections, and it is not possible to raise a first objection other than these (Art. 116 of the CCP).
In the Code of Civil Procedure No. 6100, which replaced the Code No. 1086 and entered into force on 01.10.2011, the number of first objections has been reduced from six to three, and some of the reasons for first objections have been regulated as a condition of litigation. For example, while ‘pendency’ was among the first objections listed in the former law, it is not listed among the first objections in the Code of Civil Procedure No. 6100, but directly among the conditions for filing a lawsuit by including the provision ‘The same lawsuit has not been filed before and is still pending’ in subparagraph (ı) of paragraph 1 of Article 114 regulating the conditions for filing a lawsuit.
The Code of Civil Procedure also regulates the procedure for raising and examining the first objections. Accordingly, since the first objections are not a condition of the lawsuit, they are not considered by the judge ex officio. The defendant may raise his/her first objections not at every stage of the lawsuit and not at any time, but only at the beginning of the lawsuit in the reply petition.[1]
As a rule, the reply period is two weeks from the notification of the statement of claim to the defendant. However, in cases where it is very difficult or impossible to prepare the statement of reply within this period according to the circumstances and conditions, the defendant who applies to the court within this period may be granted an additional period of time, one time only and not exceeding one month (Articles 127 and 317 of the CCP). If the defendant fails to submit all of his/her initial objections within the two-week response period and/or the additional period to be granted, the court cannot examine the initial objections after this period, even if the plaintiff consents (CCP Art. 117/1).[2] Likewise, the plaintiff is obliged to submit his/her initial objections against the counterclaim with the reply petition filed against the counterclaim.
The examination of the first objections shall be made after the conditions of the lawsuit (CCP Art. 117/2). For example, the objection of jurisdiction will be examined after the determination of whether the advance on costs has been paid or whether the court has jurisdiction. However, the objection of jurisdiction, which is subject to the first objections, is specific to the cases where the jurisdiction is not absolute jurisdiction.[3]
Likewise, if the plaintiff has applied to the court despite a valid arbitration agreement, the defendant should assert that the dispute should be resolved by arbitration as the first objection in the reply pleading.
First objections shall be examined and decided as preliminary issues (Art. 117/3 CCP). Accordingly, if the judge finds the first objections raised by the defendant or the plaintiff responding to the counterclaim in the reply pleading worthy of examination, the judge shall notify the other party to submit its reply, together with its evidence, if any, within the period to be determined by the judge. If there is a dispute between the two parties regarding the first objection, the judge shall render his/her decision after inviting and hearing the parties, if necessary. The judge shall serve or notify the parties of his/her decision on the first objection (Article 164 with reference to Article 117/3 of the CCP).
On the other hand, when one of the first objections is examined and accepted, if there is no need to examine the others, the order of priority is determined in this way and the first objections are examined. If one of more than one initial objections is examined, the others will not need to be examined by that court, and the file will be sent to another court (decision of lack of jurisdiction), the other initial objections will be examined by the sent court.
Conclusion
As a result, according to the CCP, the first objections are divided into three as the objection of jurisdiction in cases where there is no absolute jurisdiction rule, the objection that the dispute should be resolved through arbitration, and the objection of division of labour, and it is not possible to raise first objections other than these. In addition, since these objections are not a condition of the lawsuit, they are not considered by the judge ex officio, they must be raised in the reply petition. Otherwise, they will not be taken into consideration