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 a declaratory action (Art. 106/3 CCP). Likewise, it is necessary not to confuse an action for declaratory judgment with an action for the identification of evidence (Art. 400-405 of the CCP), which aims to secure evidence that is applied before the time for examination due to its loss or impossibility of application, and which aims to secure it in a sense. 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 discovery, which is a type of interim legal protection. With this general definition, it is clarified by eliminating the hesitation in practice that the declaratory action is permissible in our law and that it is a completely different institution from the determination of evidence”, and it is pointed out that if the material facts are requested to be determined alone, it is necessary to apply to the determination of evidence, 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 to file a declaratory action. Furthermore, in order for an action for declaratory judgment to be heard (in order to proceed to its merits), the plaintiff must have a current legal interest worthy of protection in the immediate determination by the court of the existence of the right or legal relationship that constitutes its subject matter (Art. 106/2 of the CCP).
The existence of a 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 with a current (Art. 106/2) danger; 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) Only the declaratory judgment, which has the effect of a final judgment and does not authorize enforcement, should be capable of eliminating this danger. In an action for declaratory judgment, unlike an action for performance and an action for construction, it is not assumed that the plaintiff has such an interest. In a declaratory action, the plaintiff must prove that the damage caused by the dangerous or doubtful situation in question can only be eliminated through a 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 judgment, which has the effect of a final judgment only and does not authorize 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 with the other litigation conditions, must be considered by the court at every stage of the lawsuit, and in the absence of these conditions, the court must dismiss the lawsuit procedurally (due to the lack of litigation conditions) without examining the merits.
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