In a narrow sense, a change of party is when one of the parties to the case leaves the case and is replaced by a third party in a lawsuit that has been opened and is being heard. With this definition, the addition of new persons to the side of one of the parties in a case that has been opened and is being heard may also be considered a change of party. Since there were no regulations regarding voluntary changes of parties in previous legal periods, there were no voluntary changes in practice. In the opinion of the Supreme Court, even change through reclamation was not possible. However, the institution of voluntary change of parties was introduced together with the Civil Procedure Law No. 6100. The most important benefit of the voluntary change of parties institution is that it provides procedural economy. As a rule, after the lawsuit is filed, there is no possibility to change the side that the plaintiff has shown with his petition. In this case, one of the possible consequences is the decision to dismiss the case due to the absence of the defendant’s capacity as a party. The possibilities that the plaintiff will use to avoid a decision to dismiss the case are to waive the case, withdraw the case, or not pursue the case, to remove the file from the transaction, and then to ensure that the case is considered unopened, and to open a separate case by showing the right person as a party. However, these procedures have adverse consequences both for the plaintiff and negatively affect all trials in general, as they unnecessarily increase the workload of the courts. Therefore, in some cases, there is a legal benefit in allowing a change of party in terms of procedural economics.
A voluntary change of party eliminates the possibility of opening a new lawsuit with the same subject matter and reason and being decided by a different judge, and prevents the prolongation of the trial period by allowing the trial to be conducted by a judge who has previously investigated the case. HMK m.according to 124/1, one of the parties must accept this when a voluntary change of party is made. Regulation of the first paragraph “A change of party in a case is possible only with the express consent of the other party.” In the form of. A voluntary change of party is necessary because if a lawsuit is filed by a person who is not actually a party, or if a lawsuit has been filed against a person who is not a party, there is a need for the case to be conducted by the person who actually has the title of a party1. The Court of Cassation on the issue 15. There is a decision of the Legal Department (15. HD., E . 2016/5718 K. 2017/590 T. 14.2.2017). The mentioned decision;
“HMK 124. according to the article; A change of party in a case is possible only with the explicit consent of the other party (124 / …). The special provisions contained in the laws on this subject are reserved (124 /…). However, a request for a change of party that is caused by a material error or does not violate the rule of honesty is accepted by the judge without seeking the consent of the other party (124/…). If the incorrect or incomplete representation of the party in the petition is based on an acceptable error, the judge may accept the request for a change of party without seeking the consent of the opposing party. In this case, the judge rules on the costs of the trial in favor of the person who has been removed from being a party to the case and has not caused a lawsuit to be filed against him (124/…).
During the discussion of the CCP bill in the Justice Commission, it was added to the bill … and …. when the justification for the paragraphs is examined, it is understood that the legislator has made arrangements by accepting the change of party to be made due to an error in representation within the scope of the article. Even regardless of the justification; it should be accepted that a voluntary change of party, which the legislator indicated could be accepted when the party with the heavier procedural error is incorrectly represented, can also be made in the event of an error in the representation containing a lighter procedural error than the other. Therefore, HMK 124. the article may also be applied if the party is shown incorrectly by an error in the representative.
When the concrete event is evaluated together with the above explanation and the mentioned rules; shown as a defendant in the lawsuit petition …. … The Regional Directorate of Construction does not have a legal entity, the right opponent … to which the Regional Directorate of Construction is also affiliated ….. …. …. since it is obvious that there is an error in the representative. Despite the objection of hostility, the lawyer came to the preliminary examination hearing, where the decision was made, as the defendant’s attorney, and this deputy …. he was not asked whether he came to the hearing as a proxy, and no explicit statement from the plaintiff about the misrepresentation of the party was applied. However, if there is a deficiency in the conditions of the case as a result of showing the wrong side by mistake in the representation, this is HMK 124. it is a lack of a case requirement that can be completed by taking advantage of the article as well. If it is possible to eliminate the deficiency of the case requirement, HMK 115/…. according to the article, the relevant party must be given time. HMK 124 to the plaintiff side. in order to complete the deficiency in the terms of the case by making a voluntary change of party by taking advantage of the article HMK 115 /…. since it is not correct to decide to dismiss the case in writing without giving a period of time based on the article, the decision had to be overturned for the benefit of the appellant plaintiff.”
According to the Code of Civil Procedure, a voluntary change of party may take place in two ways, with the consent of the other party or with the permission of the judge. 124 Of the Civil Procedure Law. except for this possibility stipulated in the article, it is not possible to voluntarily change sides through correction. If the plaintiff wants to change the defendant’s side, only the explicit consent of the defendant of the case being heard is sufficient; it does not matter whether the consent of the new defendant exists or not. In order for a change to be made on the plaintiff’s side, the previous plaintiff must first request it. Because it is unacceptable that anyone renounces the right Decertification request without his/her consent. If it is requested to change the plaintiff who appears as a party in the lawsuit petition, it is also necessary to have the consent of both the defendant of the current lawsuit and the new plaintiff. HMK m.in paragraphs 124/3-4, a change of party bet has been arranged with the permission of the judge. Regulation of the law;
“(3) However, a request for a change of party that is caused by a material error or does not violate the rule of honesty is accepted by the judge without seeking the consent of the other party.
(4) If the incorrect or incomplete representation of the party in the petition is based on an acceptable error, the judge may accept the request for a change of party without seeking the consent of the other party. In this case, the judge shall rule on the trial expenses in favor of the person who has been removed from being a party to the case and has not caused a lawsuit to be filed against him.” In the form of.
Although a voluntary change of party takes place with the consent of the opposing party as a rule, seeking the consent of the opposing party in an absolute manner will lead to prolongation of the trial and the opening of new cases in some cases, which will constitute a violation of the principle of procedural economics. The legislator who foresees this situation has granted the right of amendment with the permission of the judge in the presence of certain conditions. The legislator has collected the reasons for the amendment to be made with the permission of the judge under 3 headings. These are the change of party due to a material error, a request for a change that is not contrary to the rule of honesty, and a voluntary change of party due to acceptable error. Considering the Supreme Court application, an example of a voluntary change of party that is not contrary to the rule of honesty, filing a lawsuit against a deceased person, and error in the capacity of a party despite sufficient research, and similar situations can be given.
If the incorrect or incomplete representation of the party in the petition is based on an acceptable error, the judge may accept the change of party without seeking the consent of the other party. We should note that the cases considered as an acceptable misconception will not constitute a violation of the honesty rule at the same time, 124 of the CCP. Articles 3 and 4. the conditions that your jokes are looking for will happen at the same time. Within the scope of cases of voluntary change of party due to acceptable error, errors in the representative, filing a lawsuit against someone who does not have a legal entity, errors in official records and records that cause the party to be misrepresented, incomplete representation of the party, and similar situations can be evaluated2. The Court of Cassation on the subject 20. There is a decision of the Legal Department (20. HD., E . 2017/1874 K. 2017/2756 T. 3.4.2017). The mentioned decision;
“In the plaintiff’s petition, the defendant requested the reinstatement of the real estate subject to the lawsuit by showing … as the defendant, if not, the defendant evicted the tenant, the menin of the defendants’ case interventions, the court decided that the defendant … was not a tenant, therefore, the real estate subject to the lawsuit did not have a party license, it was rejected due to lack of animosity, the verdict was appealed by the plaintiffs’ attorney.
Hostility is related to public order, and if it is necessary to be taken into consideration by the court personally during the trial, it is necessary to show hostility to the company director … 124 of the CCP. in accordance with the provisions of the article, it is accepted that there is an error in the representative, taking into account the economics of the lawsuit, while the plaintiff should be given time to include the lawsuit petition with the notification to the Educational Services Tourism Transportation Domestic and Foreign Trade Limited Company, it was not considered correct to decide to dismiss the lawsuit without forming a party.”
There are necessary conditions for a voluntary change of parties to take place. The first of these must be requested for a voluntary change of party. Voluntary change is not a matter to be examined by the judge ex officio. A request for a change of party may be submitted in writing or verbally. There is no procedure prescribed by law. As can be done with a written declaration, it may be requested to record the hearing during the hearing. According to the explicit regulation of the law, the consent of the other party or the permission of the court is another condition for a voluntary change of party. Finally, it is necessary to make an evaluation in terms of the time when a voluntary change may be requested.
While regulating the voluntary change of parties, the legislator has not made any regulation on the duration. In this respect, it can be considered that the voluntary change of party can be made until the final judgement is rendered by the court of first instance. Since the voluntary change of party is a withdrawal of the lawsuit for the plaintiff, and a new lawsuit for the new party to the lawsuit, it is necessary to make an evaluation by comparing the provisions of the CCP. According to Article 123 of the CCP, it is possible to withdraw the lawsuit until the judgement is finalised, while according to Article 357 of the CCP, a new lawsuit can only be filed at the court of first instance. Accordingly, it is possible until the final judgement is rendered on the case at the court of first instance. In the last sentence of Article 124 of the CCP, a regulation has been made in terms of judgement expenses. ‘In this case, the judge shall award the costs of the proceedings in favour of the person who is removed as a party to the lawsuit and does not cause a lawsuit to be filed against him.’ Pursuant to this provision, judicial expenses should be awarded in favour of the defendant who is removed as a party to the lawsuit. Since this person is not at fault in the misrepresentation of the existing defendant, and since he/she is forced to deal with the proceedings that he/she should not have to deal with3 , the judicial expenses incurred by him/her should be covered.