مرکز منطقه ای اطلاع رساني علوم و فناوري - Default Judgement by German Courts in Compliance with Turkish Law in Terms of International Notification Law

Abstract :

Under rule 331 of German Code of Civil Procedure german courts issue default judgement against the defendant in Turkey, who fails to plead or otherwise defend. Default judgement can be served on the defendant, who failed to defend, by post under rule 184 of German Code of Civil Procedure. During the phase of enforcement of foreign judgements in Turkey, default judgement and notification by post are evaluated by the turkish courts in terms of right of defence and public order. While the turkish courts decide that default judgement does not signify restriction of the defendants right of defence and turkish public order, the notification through post are accepted as a restriction of the defendants right of defence by the reason of reservation on Hague Convention and demands for enforcement of foreign judgements were dismissed because of absence of a final decision. According to German Code of Civil Procedure a final decision, which has been made in a proper manner, is in question, however, according to Turkish Code of Civil Procedure non-final decision is in question, hence, the conflict of laws occurs. Considering the objections on the pendency of cases in turkish courts can be filed, the only way for the plaintiff to reach his rights is to provide to finalize the court decision by making a new notification again pursuant to Hague Convention. However, having a final decision brings various problems together quasi effects of notification on the judgement, possibility of appeal, different effective dates for the same court decision, beside the question of possibility to make a new notification according to German Code of Civil Procedure. In this study will be examined default judgement of German Code of Civil Procedure and notification by post in terms of right of defence and public order in the light of turkish and german court decisions.