PARTIES IN THE CASE OF DETERMINATION OF EVIDENCE
We have already mentioned that, although it is known as a “case for the determination of evidence”, it is not actually a lawsuit. For this reason, there cannot be anyone who has the title of defendant and plaintiff among the parties in the determination of evidence; there are only the parties who request determination and against whom determination is requested in accordance with Article 402/1 of the CCP.
COURT OF JURISDICTION AND COMPETENT JURISDICTION
In the event that the main lawsuit has been filed, the determination of evidence shall be carried out by the court where the main lawsuit is pending. However, in cases where the main lawsuit has not been filed:
The court that will hear the main case or
It shall be requested from the civil court of peace in the place where the thing to be subjected to discovery or expert examination is located or where the person to be heard as a witness resides.
If the main lawsuit has been filed in the competent court, it cannot be claimed that the court hearing the main lawsuit is unauthorised or incompetent in relation to the request for discovery of evidence.
This issue is clearly regulated in Article 401 of our Code of Civil Procedure titled “Duty and Jurisdiction”.
DOES THE CLAIM FOR DISCOVERY OF EVIDENCE STOP THE STATUTE OF LIMITATIONS?
We have already stated that the determination of evidence is known as a “lawsuit for the determination of evidence” among the legal community and the public, but it is not a lawsuit in the real sense, but a temporary legal protection measure. Therefore, with the filing of this request, the consequences of the filing of the main lawsuit do not arise and therefore the statute of limitations does not stop or interrupt.
TRIAL PROCEDURE IN THE CASE OF EVIDENCE DISCOVERY
Pursuant to Article 316 of our Code of Civil Procedure, the simple trial procedure is applied in the case of determination of evidence. In the simple procedure, unlike the written procedure, only the petition for lawsuit and reply can be filed by the parties, and the reply and second reply petitions cannot be filed.
THE NATURE OF THE JUDGEMENT IN THE CASE OF DETERMINATION OF EVIDENCE
The determination of evidence is not an enforceable final judgement; in other words, it does not contain any performance judgement. Since the decision to be rendered upon the request for the determination of evidence does not contain an execution clause and is not enforceable, the person requesting the determination of evidence will not be able to apply to the enforcement office with a request to fulfil the requirements of the decision.
APPEAL AND LEGAL REMEDIES AGAINST THE DECISION RENDERED IN THE CASE OF DETERMINATION OF EVIDENCE
Since the decision to be rendered regarding the request for the determination of evidence does not contain a judgement of execution and does not constitute an enforceable final judgement, it is not possible to apply to legal remedies such as appeal and appeal against this decision. Only pursuant to Article 403 of our Code of Civil Procedure, the opposing party may appeal within 1 week from the date of notification.
LEGAL EXPENSES IN THE CASE OF DETERMINATION OF EVIDENCE
Trial expenses incurred for the determination of evidence may be shown among the expenses in the main lawsuit and may be claimed from the opposing party. In the event that the other party loses the main lawsuit, the claim for the costs of the proceedings shall be accepted and paid by the other party. In addition, in addition to the attorney’s fee to be awarded in the main lawsuit, an attorney’s fee should be awarded in favour of the party who performs the evidence determination procedure through an attorney.
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