COURT OF CASSATION 19. CIVIL CHAMBER 2020/85 E , 2020/454 K 13/02/2020
In accordance with Article 5 / A added to the TCC numbered 6102 with the law numbered 7155, it is not mandatory to go for mediation before filing a lawsuit for negative declaratory action of commercial nature. In addition, it should be noted that the use of mediation is not a condition of lawsuit.
The 19th Civil Chamber of the Court of Cassation resolved the dispute in the decisions of the appellate offices regarding whether it is necessary to go to mediation before filing negative declaratory action of commercial nature with the decision dated 13/02/2020 and 2020/454 k and ensured the unity of case law.
As it is known, one of the special types of declaratory action is negative declaratory action of commercial nature.As a result of the case, if it is understood that the debtor is not indebted, a negative declaratory decision is given by indicating the part not owed. The verdict given by the court is not a decision that requires the collection of the receivable, therefore, it cannot be directly enforced pursuant to article 32 of the BEC(İİK).
However, decisions made as a result of mediation has power of written copy of a court decision and enforcement action may be applied.
For this reason, it is understood that the legislator does not consciously subject negative declaratory actions to the mediation requirement.
The High Chamber decided that mediation is not a condition for negative declaratory actions of commercial nature, for the above-mentioned reason.