Delil Tespiti Davası (Altyazılı)

Our lawyer, Attorney Gizem KEMER, explains it for you in the video. ✍🏼 ⚖️ 00:00 Introduction & Intro You haven't filed a lawsuit yet… but there's a possibility that the evidence you plan to use in a future lawsuit might be lost. For example, if your business partner is concealing assets or the health of a witness you need to testify is at risk, this is where the institution of "evidence gathering" comes into play. An evidence gathering lawsuit is regulated as a "temporary legal protection measure" in Articles 400-406 of the Code of Civil Procedure No. 6100, and it is a temporary legal measure that ensures the preservation of evidence that has not yet been presented in a future or ongoing lawsuit, to prevent its loss or the reduction of its probative value. In this respect, evidence gathering is not a lawsuit itself, but a procedural action related to the lawsuit it relates to. However, due to common usage, it is known as a "sIDE NOTE" in the context of evidence gathering lawsuits. In addition, in order to request the determination of evidence, the determination of a fact must be requested and a legal interest must exist. Regarding this: Except for cases explicitly provided for in the law, a legal interest is deemed to exist in cases where there is a possibility that the evidence will be lost or significantly difficult to present if it is not determined immediately. Examples include: • Concealing assets from inheritance through fraudulent transfers by the deceased, • Concealing assets through fraudulent disposal of company assets, .... In urgent cases, it is possible to request the determination of evidence in a way that ensures the evidence is obtained without being destroyed. What is the Procedure for a Case of Evidence Determination? Regarding the procedure for a case of evidence determination... Looking at the parties to a case of evidence determination, the plaintiff is the "party requesting the determination," and the defendant is the "party against whom the determination of evidence is requested." Article 405 of the Code of Civil Procedure states: "The evidence gathering file is considered an annex to the main case file and is merged with it. Each of the parties to the main case may rely on these minutes and reports to prove their claims or defenses." Therefore, each of the parties to the main case can rely on these minutes and reports to prove their statements in their claims or defenses. Furthermore, it is possible to object to an expert report obtained as a result of the evidence gathering case in the main case that will be filed later. Therefore, the evidence gathering case primarily serves as a kind of guide for the party requesting the evidence gathering. Another important point is regulated in Article 403 of the Code of Civil Procedure, which stipulates that, in exceptional cases where it is necessary to protect the rights of the party requesting the evidence gathering, the court may conduct the evidence gathering in the absence of the opposing party without serving notice. For example, if there is a fear that the opposing party, upon learning of the planned discovery, might alter the status of the disputed matter, or if it is not possible to keep the matter to be determined for an extended period, the court may conduct the discovery without notifying the opposing party. So, what can be requested in a Determination of Evidence Case? Since a determination of evidence case is a type of declaratory action, requesting a performance order in this case would be meaningless. However, it would also be unlawful to issue a judgment granting rights to the parties or obligating them as if a request for performance were involved. In conclusion, the court examining the request for determination of evidence can determine the evidence regarding the existence of illegality, determine which party caused the illegality, order the calculation of any damages if they exist, and issue decisions that do not include a performance order. Furthermore, if a decision containing a performance order is issued, it cannot be said that this decision given in a determination of evidence case has the quality of being enforceable. Can the costs of evidence gathering incurred by the requesting party be claimed from the opposing party in the main lawsuit? As we stated at the beginning of our video, "Evidence Gathering" is considered a "Temporary Legal Protection Measure" according to Article 400 of the Code of Civil Procedure No. 6100, and is also considered a "Litigation Cost" according to Article 323, paragraph 1, subparagraph (c) of the same law. Before concluding, we would like to emphasize that due to the incorrect filing of this lawsuit, your request will be rejected, and the report obtained due to incomplete findings may weaken your legal position by establishing evidence against you rather than protecting it. Therefore, since the material facts of the claims in the main lawsuit will be determined by the evidence...