Joinder of parties is regulated under Articles 57-60 of the Code of Civil Procedure No. 6100. Since joinder of parties concerns the parties to the case, it is also referred to in legal doctrine as subjective consolidation of claims. In a case governed by the Code of Civil Procedure (HMK), joinder of parties arises when multiple plaintiffs file a lawsuit and there is a connection between them concerning the case, or when multiple defendants are sued and there is a connection between them regarding the case. In such situations, the case will be considered under the concept of joinder of parties.
Furthermore, according to the HMK, joinder of parties is categorized into two types: mandatory (compulsory) joinder of parties and optional joinder of parties. Mandatory joinder of parties is further divided into two subcategories: substantive (material) mandatory joinder and procedural (formal) mandatory joinder.
OPTIONAL JOINDER OF PARTIES
Optional joinder of parties is regulated under Articles 57 and 58 of the Code of Civil Procedure (HMK). Optional joinder of parties occurs when multiple persons jointly file a lawsuit or when a lawsuit is directed against multiple persons within the framework of legally prescribed conditions. For optional joinder of parties to be applicable, the legally stipulated circumstances must be present; otherwise, it is not possible to speak of an optional joinder of parties.
Optional Joinder of Parties ARTICLE 57-
(1) Multiple persons may file a lawsuit together or be sued together in the following cases:
a) If the right or obligation that is the subject of the lawsuit is shared among the plaintiffs or defendants for a reason other than joint ownership.
b) If a right has arisen in favor of all of them through a common transaction, or if they have incurred an obligation in this manner.
c) If the facts and legal grounds forming the basis of the lawsuits are the same or similar.
The Status of Voluntary Joint Litigants ARTICLE 58-
(1) In voluntary joint litigation, the lawsuits are independent of each other. Each joint litigant acts independently of the other.
As the name suggests, voluntary joint litigation does not impose any obligation on the parties. Even though the parties’ cases are conducted within the same lawsuit, each party’s case remains independent, and the parties act separately within the litigation. There is a connection between the parties regarding the merits of the case, and in line with the principle of procedural economy, which forms the basis of the Code of Civil Procedure, it is more appropriate for multiple parties’ cases to be handled within the same case file due to their subject matter connection.
As can be understood, voluntary joint litigation may arise at the initial stage of the case through the statement of claim, or it may also occur later through a court decision to consolidate case files while the proceedings are ongoing.
CASES WHERE VOLUNTARY JOINT LITIGATION APPLIES
As stated in the legal provision, voluntary joint litigation may apply under certain conditions. One such situation occurs when the right or obligation in dispute is based on a common reason between the plaintiff or defendant parties, excluding joint ownership. If the subject of the dispute, whether a right or an obligation, is based on a common cause related to shared ownership among the parties, voluntary joint litigation may be applicable. However, if the connection to the subject of the case arises from joint ownership, it will not be considered voluntary joint litigation but rather mandatory joint litigation, as will be explained further.
Another situation where voluntary joint litigation applies is when the parties have undertaken a transaction together based on their mutual will, and through this transaction, they have jointly assumed an obligation. If the subject of the case involves a situation where a right has arisen in favor of the parties due to their joint action or where they have assumed a liability together as a result of a transaction, voluntary joint litigation will again be applicable. In this context, it is possible to consider the obligation as a shared responsibility. The crucial point here is that the shared responsibility must exist among the plaintiffs or defendants who are on the same side of the lawsuit.
The final situation where voluntary joint litigation applies is when the facts or legal grounds related to the case in which voluntary joint litigation is involved are the same or similar. What is important here is that the events or reasons underlying the case are common.
As understood from the legal provision, beyond the three situations listed above, it is not possible to refer to voluntary joint litigation between the parties in a case file. The legislator has imposed restrictions on voluntary joint litigation.
The Status of Voluntary Joint Litigation in the Case
As stated in Article 58 of the Civil Procedure Law (HMK), in cases involving voluntary joint litigation, the parties are independent of each other and act independently. This means that during the judicial proceedings, the parties act independently from one another, and separate rulings are made for each party at the conclusion of the case. As a result, in voluntary joint litigation, because the cases are independent of each other, separate judgments are issued for each party in the same case, meaning there are as many cases within the same proceeding as there are parties involved in the voluntary joint litigation. As mentioned, the parties are not required to file the lawsuit together. Even after each party files a lawsuit, the cases can be combined by the court’s decision and be heard within the same proceedings.
In cases involving voluntary joint litigation, the actions and cases of the parties are independent of each other, meaning that all actions (such as objections to jurisdiction, statute of limitations, etc.) taken by the parties will have effects only for the party who took the action.
“The case concerns the claim for the collection of the property price arising from the timeshare sale agreement signed between the parties. In voluntary joint litigation, the cases are independent of each other. Each party acts independently from the other. Since there are multiple plaintiffs in the case, and each plaintiff is requesting the payment for timeshares that need to be registered in their name as of the date of the lawsuit, voluntary joint litigation exists between each plaintiff.”
In cases where voluntary joint litigation is involved, even though the claim may be made with a single lawsuit, in reality, there is a separate lawsuit for each voluntary joint litigant. Therefore, instead of issuing a judgment in the written form, it is necessary to issue a separate judgment for each plaintiff, specifying the amount for each. The issuance of a judgment in the written form without this distinction is contrary to procedure and law and requires reversal.
The court, taking into account the voluntary joint litigation between the plaintiffs, should have issued a judgment specifying the amount separately for each plaintiff. However, the judgment, which orders the total value of the properties on the date of the lawsuit to be taken from the defendant and given to the plaintiffs, is contrary to procedure and law and requires reversal.” Y3HD. 2022/8099 K.
Mandatory Joinder of Parties
Mandatory joinder of parties is regulated under Articles 59 and 60 of the Civil Procedure Code (HMK). According to the provisions of the law, mandatory (compulsory) joinder of parties is further divided into two categories: substantive and procedural mandatory joinder of parties.
Compulsory Joinder of Parties ARTICLE 59-
(1) According to substantive law, in cases where a right is to be exercised jointly by multiple persons or is to be asserted jointly against multiple persons, and where a single judgment must be rendered regarding the entire matter, there is compulsory joinder of parties.
The Status of Compulsory Joinder of Parties in a Case ARTICLE 60-
(1) Compulsory co-litigants can only file a lawsuit together or be sued together. In such a joinder, the co-litigants are required to act together. However, the procedural actions taken by the co-litigants who have attended the hearing shall also apply to those co-litigants who did not attend the hearing despite being duly summoned.
Joinder of parties is determined based on the subject of the case and pertains to substantive law. According to this, if the subject matter of the case arises from a close relationship between the parties that cannot be dealt with in separate lawsuits and requires a single judgment, compulsory joinder of parties will apply.
In cases where compulsory joinder of parties occurs, unlike cases involving voluntary joinder, the parties are not independent of each other within the lawsuit, and a single judgment will be rendered that affects all parties involved. That is, even though there may be multiple plaintiffs or defendants in cases involving compulsory joinder of parties, there is only one lawsuit, not multiple lawsuits.
Substantive Compulsory Joinder of Parties
In cases involving compulsory joinder of parties, as mentioned above, when the right or obligation subject to the lawsuit arises from an inseparable common cause between the parties, and in this case, the ruling on the subject matter of the common right or obligation requires a single judgment for all parties, substantive compulsory joinder of parties will apply. For example, joint ownership.
Formal compulsory joinder of parties
While material compulsory joinder of parties can occur on both the plaintiff and defendant sides of the case, formal compulsory joinder of parties is only possible on the defendant’s side. Formal compulsory joinder of parties refers to situations in procedural law where a case is directed against multiple individuals. Unlike material compulsory joinder of parties, it does not require a single ruling to be made for all the parties involved. Separate rulings can be made for each party. In cases involving formal compulsory joinder of parties, there is no obligation for the parties to act together.
The Status of Compulsory Co-Defendants in a Case
In cases where compulsory co-defendants exist in a material sense, the co-defendants must act together. There is no independence between the co-defendants, and the actions taken must be done jointly, with the results of those actions affecting all co-defendants.
In cases where co-defendants are involved in a formal sense, as mentioned earlier, separate judgments can be made for each co-defendant, and due to the procedural nature of the co-defendant relationship, they may have the opportunity to act independently.
Court of Cassation Decisions Regarding Voluntary and Compulsory Joinder of Parties
“The case concerns the cancellation of the construction contract in exchange for the land share and the request for the annulment and registration of the title deed. It is understood that all the landowners are parties to the lawsuit in the construction contract that is requested to be terminated. Therefore, the judgment to be given by the court at the conclusion of the trial will affect the rights of the other landowner who signed the contract but was not shown as a party to the lawsuit. Firstly, for a construction contract in exchange for land shares to be made on the properties in question, and for the contract to be binding on the co-owners and the contractor, the contract must be signed by all the stakeholders or their authorized representatives, or “approval” must be given for the contract. Since the lawsuit for the termination or cancellation of the contract is considered an “extraordinary disposition” under the same article, the court must consider that all co-owners must file the lawsuit together, and the other landowners who are parties to the contract are considered compulsory co-defendants in the case. In light of the provisions of Articles 59 and 60 of the Civil Procedure Code (HMK), the court must ensure party formation by giving the plaintiff time to include the other parties in the lawsuit or to obtain their consent. After the parties have been included, the case should be examined based on the claims and defenses, and in light of the evidence collected, a decision should be made in accordance with the essence of the dispute.” Y23 HD. 2020/2338 K.
COURT OF CASSATION 11th CIVIL CHAMBER Case No: 2016/14652 Decision No: 2017/88 Date: 06.01.2017
- Article 57 of the Civil Procedure Code (HMK)
- Voluntary Joinder of Parties
1- As emphasized in the reasoning of the Court of Cassation’s General Assembly decision No. 70 dated 11.04.1940 and the reasoning of the Court of Cassation’s General Assembly decision No. 1981/2-551 dated 21.11.1981, courts cannot lift their own judgments or issue a decision that nullifies a previous judgment, except for the exceptions specified in the law. The authority to annul and lift the decisions of the first-instance courts belongs exclusively to the Court of Cassation, as per Article 428 of the former Civil Procedure Code (HUMK), which continues to be applied under Article 1 of the Court of Cassation Law and Article 3 of the Transitional Provisions of the Civil Procedure Code (HMK). Once the local court has concluded the hearing and made a decision, it has withdrawn from the case. After the decision, the court cannot reconsider the case and issue a decision that affects the substance of the case. There is no legal provision that allows the court to review the case and make a decision in this regard. The provision in Article 57 of the HMK Regulation, which appears to provide such a possibility, does not have a legal basis, as it pertains to a matter that must be regulated by law, and thus, it is not applicable in such cases. In such cases, after the Court of Cassation issues a decision for annulment, it is possible to reconsider the case and issue a decision due to the reason for withdrawal. Established practice of the Court of Cassation follows this approach. In light of all these explanations, after the court decided to reject the case and withdrew, based on the petitions submitted by the attorneys of the parties, the court issued an additional decision rejecting the case due to withdrawal and not determining the attorney’s fee for the defendant. This decision was not appropriate, and it was necessary to annul and revoke the additional decision dated 05.12.2016.
2- The dispute is of a nature that the parties can freely dispose of, and a waiver of the case can be made until the judgment becomes final. It is not dependent on the acceptance of the opposing party, and it takes effect immediately upon being made, resulting in the consequences of a final judgment. The declaration of waiver made by the plaintiff’s attorney before the decision becomes final is effective according to Articles 74, 307, and the following provisions of the Civil Procedure Code (HMK), and it was necessary to annul the local court’s decision in order to issue a ruling regarding the waiver of the case.
3- Based on the grounds and form of the annulment, there is no need to examine the appeal objection made by the plaintiff’s attorney.
CONCLUSION: For the reasons explained in paragraph (1) above, the local court’s supplementary decision dated 05.12.2016 is REVOKED; for the reasons explained in paragraph (2) above, the local court’s decision dated 04.12.2015 is ANNULED; for the reasons explained in paragraph (3) above, there is NO NEED to examine the appeal request of the plaintiff’s attorney at this stage; and the appeal fee paid will be refunded to the appellant upon request. The decision was made unanimously on 06/01/2017.
COURT OF CASSATION 22ND CIVIL CHAMBERCase No: 2017/10804Decision No: 2017/5605Date: 20.03.2017
- Article 59 of the Civil Procedure Law (HMK)
- Compulsory Joinder of Parties
The plaintiff’s attorney, arguing that the client, who works as a protective mother, was unjustly dismissed as a result of false accusations, has requested the invalidity of the termination, reinstatement to the job, non-reemployment compensation, as well as wages for the period of unemployment and other rights to be adjudicated.
Summary of the Defendant’s Response:
The defendant Ministry’s representative summarized that, regarding the plaintiff, the employer is … Ltd. Şti., which is in a subcontractor position with the … … and … … Provincial Directorate, and that there is a maintenance contract between the institutions in collaboration with Yeni Nesil company. It was argued that the plaintiff’s behavior violated Article 25/II-e of the Labor Code and the tender specifications, which constitute legitimate reasons for the termination of the plaintiff’s contract. The representative claimed that the subcontractor had justly terminated the plaintiff’s contract and requested the dismissal of the case.
ملخص حكم المحكمة:
Based on the evidence collected, the court ruled that the plaintiff, who was working as a foster mother in the homes assigned for the care of children placed under protection within the defendant institution, had their employment contract terminated due to mistreatment in the children’s home. This fact was clarified through the testimony of witnesses and the contents of the case file. The court concluded that the termination made by the defendant was for valid reasons, and therefore, the case was dismissed.
Appeal:
The decision was appealed by the plaintiff’s attorney.
Reason:
In cases where a lawsuit is filed solely against the subcontractor for the invalidity of the termination or with an allegation of invalidity or collusion against only the primary employer, the issue of party status arises if it is determined that the person named as the defendant is not the actual employer of the worker, depending on whether the primary-employer/subcontractor relationship is determined to be invalid or based on collusion. If the case is dismissed due to lack of party status, the worker may face the risk of missing the one-month filing period prescribed for reinstatement lawsuits in a case filed against the actual employer. Such an outcome would not only harm the worker, but if the one-month period has not passed, it would also be inefficient in terms of procedural economy, as it would require filing a new lawsuit. Both the Court of Cassation … Civil Chamber, which previously dealt with reinstatement cases, and our Chamber have attempted to address this issue by overcoming the rigid rules of the repealed Civil Procedure Law No. 1086 through a change of party status, accepting that the representative of the plaintiff made an error in party status or a material error regarding party status.
However, when a reinstatement case is filed jointly against the primary employer and the subcontractor, the case is not dismissed on the grounds of lack of party status for the primary employer, but when the case is filed only against the primary employer, it is decided that there is no party status and that there is an error in party status. This contradiction in the proposed solution has drawn attention.
On the other hand, Article 124 of the Code of Civil Procedure No. 6100, which came into effect on 01 ….. 2011, regulates that requests for voluntary party changes based on acceptable mistakes can be accepted by the court. However, given that the mentioned regulation ties the request for a party change to a specific condition, it is not possible for the judge to remind the parties about this issue. Therefore, continuing the practice of annulment of the court decision based on the claim that a material error in party status occurred, even though no request was made, is not possible in light of the clear regulation provided by the law.
In this case, the need has arisen to reconsider and reevaluate the aforementioned case law in our Chamber.
In terms of the effect of the judgment to be given by the court, mandatory joint litigation is divided into two types: material mandatory joint litigation and formal (procedural) mandatory joint litigation. Material mandatory joint litigation arises in situations where, according to substantive law, a right must be used jointly by multiple people or must be asserted jointly against multiple people, and a single judgment must be rendered concerning all parties involved (Article 59 of the Turkish Civil Procedure Code No. 6100). Formal (procedural) mandatory joint litigation, on the other hand, refers to situations where, due to specific provisions of the law and the nature of the case, it is necessary to file and conduct a lawsuit against multiple people. Procedural joint litigation is accepted to ensure the full revelation of the facts and the proper resolution of the relationship between the parties. In this case, there is no obligation to issue a single, unified decision regarding the legal relationship in question for all joint litigants. Additionally, the procedural actions taken by the joint litigants are independent of one another.
According to the sixth and seventh paragraphs of Article … of the Turkish Labor Law No. 4857, the judicial review that must be conducted ex officio regarding the validity of the principal employer-subcontractor relationship or whether it is based on collusion requires the parties to the relationship, namely the principal employer and the subcontractor, to be involved in the case and to have the right to make clarifications and provide evidence to protect their legal interests. Any contrary view would violate the right to a fair trial regulated under Article … of the European Convention on Human Rights and the right to a legal hearing provided under Article 27 of Law No. 6100. Accordingly, specifically for reinstatement cases, in cases where the principal employer-subcontractor relationship is involved, it should be accepted that there is a form of formal (procedural) mandatory joint litigation from the perspective of the defendant side.
As can be seen, this approach provides a solution that ensures the protection of the rights of both parties, the worker and the employer, in terms of both material and procedural legality.
Therefore, in cases where a reinstatement action is filed only against the principal employer or the subcontractor, the court should not immediately dismiss the case. Instead, the court should grant the plaintiff a period to extend the case to the principal employer or subcontractor who was not named as a defendant. If the extension is made within the given time, the case should proceed; otherwise, the case should be dismissed on procedural grounds.
After the parties have been properly constituted, a review of the case’s merits should be conducted. If the principal employer-subcontractor relationship is found to be in violation of the law or based on collusion, the decision regarding the invalidity of the termination should be made concerning the real employer. The other party involved in the collusive relationship should be held jointly responsible for the financial consequences of the reinstatement.
In the present case, the lawsuit has been heard and concluded before the defendant … and the … Ministry (… Provincial Directorate).
According to the service record sent to the file by …, along with the employment commencement and termination declarations, it is seen that the last employer of the plaintiff as of the termination date is the joint venture of … Bilişim Ltd. Şti.-Yeni … Sis. Hiz. Ltd. Şti. The contract, which was signed between the defendant Ministry and these companies as a joint venture, covering the period from 01.01.2015 to 31…..2017, for the Child Care Coordination Center Directorate’s maintenance tender, is also included in the file.
The task of the court is to ensure that the lawsuit petition and the hearing date are served to the joint venture companies … … … Bil. Tem. Tur. Nak. Yem. Gıda İnş. Med. Teks. Pet. Oto. San.ve Tic. Ltd. Şti. and … … … Hizm. Bilişim Teknik Yemekçilik Gıda İnş. Tur. Taş. Elektrik Elekt. San. ve Tic. Ltd. Şti., directing the dispute accordingly, and after establishing the parties and collecting the evidence to be presented by the mentioned companies, a decision should be made based on the outcome and the case should be concluded.
It is contrary to procedure and law for the court to have made a written decision without establishing the parties, and this constitutes a reason for reversal.
CONCLUSION: The appealed decision is REVERSED for the reasons stated above. Regarding the reason for reversal, there is no need to examine other grounds for appeal at this stage. The appellate fee paid in advance shall be refunded to the relevant party upon request. The decision was made unanimously on …03.2017.
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