I. Waiver of the lawsuit:
Waiver of the lawsuit is the waiver of the outcome of the lawsuit by the plaintiff. The waiver may be partial or complete. With the waiver, the plaintiff partially or completely gives up what he/she demands in the conclusion section of the lawsuit petition. It is at least as important and needs attention as the lawsuit itself.
The regulations regarding the waiver of the lawsuit are found under the subtitle of "Party Actions That Terminate the lawsuit" and in Articles 307 and following of the Code of Civil Procedure Law No. 6100. As can be seen from the provisions, the right of waiver is a right granted to the plaintiff.
With the waiver, the plaintiff partially or completely waives his/her claims regarding the outcome of the lawsuit. In other words, waiver is a procedural act that has very important consequences. For this reason, it is important to ensure that no legally incorrect mistake is made before or during the exercise of the waiver right.
Article 319 of the Code of Civil Procedure regulates how the waiver of the lawsuit shall be made. Pursuant to this Article, the waiver may be made by petition or orally. Oral waiver can only be made during the hearing. Otherwise, all waivers must be made in writing. The petition or oral statement of waiver must be unconditionally in order to be valid. If the waiver will be made not completely but partially for one or more of the claims, it is mandatory to state that clearly in the petition.
The waiver becomes effective upon the submission of the petition to the relevant court or the oral declaration of waiver during the hearing. Consequently, it is not required that the court shall consent to the petition or the oral declaration of waiver.
Article 310 of Code of Civil Procedure is a provision that regulates the timing of the waiver. The Article stipulates that the waiver may be made during the period from the filing of the lawsuit until the finalization of the decision.
The plaintiff who makes a declaration of waiver is deemed as having been ruled against, in short, as lost the case. As a result, he/she becomes liable to pay the expenses of the proceedings. In case of partial waiver, the trial expenses to be paid would be subject to separate evaluation in terms of the partial part of the waiver. Regarding the fees in case of waiver of the lawsuit; the plaintiff who declares waiver becomes obliged to pay a certain portion of the decision and judgment fee in accordance with the Law on Fees. Initial expenses are left on the plaintiff.
Consequences of Waiver:
- The plaintiff may not revoke the waiver after he/she has made an oral or petitioned waiver in accordance with the procedure.
- In the case of waiver after the judgment is rendered, the file cannot be sent to the appeal process, even if one of the parties has applied for appeal.
- The plaintiff may claim that the waiver was made due to circumvention, fraud or coercion, and therefore the plaintiff may file a separate "action for termination of waiver" to revoke the waiver.
- With the complete waiver of the lawsuit, the dispute between the parties can be terminated.
- It is not possible for the plaintiff to file the same lawsuit again. If the plaintiff re-files the lawsuit, the lawsuit will be dismissed on the grounds of res judicata.
II. Withdrawal of the lawsuıt:
The case is a dispute resolution method that it makes possible to obtain a definitive result in the event that a person whose rights are violated or endangered fails to obtain a result upon his/her request, which is called the "right to demand", from the person who violates or threatens his/her rights to stop the violation or threat and to compensate the damages, if any, the judicial organs of the state (courts) protect his/her rights.
The concepts of waiver and withdrawal of the lawsuit are very important institutions that are often confused, but since they have great differences in terms of their consequences, their contents should be known very well and should be acted by being aware of their differences.
Article 123 of Code of Civil Procedure regulates withdrawal of the lawsuit. Here, the plaintiff does not give up the right subject to the lawsuit, but reserves the right in question and decides not to pursue the lawsuit.
Consequences of Withdrawal the Lawsuit:
- The withdrawal of the lawsuit gives the plaintiff the opportunity to file a lawsuit again in the future based on the right that still exists.
- Another important point is that for the withdrawal of the lawsuit to be possible, the defendant must also give explicit consent to withdrawal. The case can be withdrawn at any time until the decision is finalized but the consent of defendant is required.
- In case of withdrawal of the lawsuit, the lawsuit is deemed as it was never filed and all the consequences arising therefrom are eliminated retroactively. However, as mentioned above, since the person still has the right that was subject to the lawsuit, he/she will be able to file this lawsuit again in the future based on the same right.
- In the case of withdrawal of the lawsuit, the court would decide as "deeming the case as not filed". In this case, the expenses of the proceedings shall be awarded as the judgment had been rendered against the plaintiff.
III. The Differences Between Waıver Of The Lawsuıt And The Wıthdrawal Of The Lawsuıt:
- In case of withdrawal of the lawsuit, it is possible to file a lawsuit again based on the same right since the right subject to the lawsuit is reserved, whereas when we waive the lawsuit, since we have actually waived our right subject to the lawsuit, that right is no longer in existence and it is no longer possible to file a lawsuit based on this right in the future.
- Waiver of the lawsuit has the same effect as a final decision. A unilateral declaration of will is sufficient here. Although the acceptance of the defendant is not required and the court is obliged to accept a valid waiver. Here, there is a waiver of a right. In the case of withdrawal of the lawsuit, the lawsuit can be withdrawn with the explicit consent of the defendant until the lawsuit is finalized. While the waiver of the lawsuit can be made unilaterally, the withdrawal of the lawsuit depends on the consent of the other party.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.