A comparative approach to preliminary examination in Turkish civil procedure law and proceeding in jure in Roman law

Abstract

The preliminary examination phase, which is implemented to the procedure to build the case, is an important reform in Turkish Civil Procedure Law which entered in force with the Code of Civil Procedure in 2011. Before the Code of Civil Procedure, the presentation of the written case material to the court inevitably led to case files being inflated and the judges who were already under heavy load had not read the files before the investigation phase. The preliminary examination is the preparatory stage in which the points that the parties agree and disagree are identified prior to the investigation stage, in order to examine and discuss only the disputed facts and the related evidence at the stage of the investigation. In Roman law, in Jure phase was carried out to determine the disputed facts and if there is a right of action, followed by litis contestatio. At this stage, with the participation of the parties, Magistrate specifies the main particulars of the dispute and prepares an agenda for the adjudicating judge to abide. In this presentation, the particulars of the preliminary examination in Turkish Civil Procedure Law will be explained comparatively with the aspects of proceeding in Jure in Roman Law, and the similarities and differences of both concepts will be revealed.