Decision of the Court of Cassation General Assembly on Civil Matters Regarding the Distinction Between the Decision of Resistance and a New Judgment
Introduction
The Court of Cassation General Assembly on Civil Matters (“General Assembly”), by its decision dated 08.10.2025 and numbered 2024/572 E. and 2025/607 K. (“Decision”), in the dispute brought before it, prior to examining the merits of the matter, discussed and assessed as a preliminary issue whether the decision referred to as a decision of resistance is of the nature of a new judgment based on new evidence and reasoning, and, in accordance with the conclusion to be reached therefrom, whether the appellate review should be carried out by the General Assembly or by the specialized chamber.
In the Decision, it was concluded that the decision described by the court as a “decision of resistance” is not, in terms of procedural law, a genuine decision of resistance but is of the nature of a new judgment based on new evidence and reasoning that had not been discussed and assessed in the first decision, and therefore, that the case file must be transmitted to the specialized chamber for the examination of the appellate objections directed against the new judgment.
The Decision is of significance due to its addressing the distinction between the decision of resistance and a new judgment and, proceeding therefrom, its indicating the authority competent to review the decision.
The Case at Hand and the Course of Proceedings
The dispute between the parties is an action for the annulment of objection. It is understood that the plaintiff initiated enforcement proceedings upon the non-repayment of the debt that he alleged to have given to the defendant cooperative, and that, upon an objection being lodged against this proceeding, he filed an action for the annulment of the objection. The court of first instance partially accepted the action, and upon the parties’ appeals, the specialized chamber quashed the decision.[1]
The first instance court, in response to this quashing decision, rendered its judgment by characterizing its decision as a “decision of resistance.” Upon the resistance decision being appealed, the matter came before the General Assembly.[2] During the deliberations held before the General Assembly, prior to the examination of the merits of the case, it was evaluated as a preliminary issue whether the decision referred to as a decision of resistance is of the nature of a new judgment based on new evidence and reasoning, and, depending on the conclusion to be reached therefrom, which authority is competent to conduct the appellate review.
The Concept of the Decision of Resistance
In Turkish law, if the lower courts (the court of first instance and the regional court of appeal) are of the opinion that the quashing decision of the Court of Cassation is not accurate, they may resist in their decision.
Article 373 of the Code of Civil Procedure No. 6100 (“CCP”) stipulates the compliance or resistance to the quashing decisions (in whole or in part) of the Court of Cassation. Accordingly, if the decision is resisted by the court of first instance or the court of appeal (the regional court of appeal), and such decision of resistance is appealed, the review shall be conducted by the chamber whose decision has been resisted. If the chamber deems the decision of resistance appropriate, it corrects its own decision; if it does not, it transmits the file to the General Assembly.[3]
The corresponding provision of the article in the repealed Code of Civil Procedure No. 1086 was contained in Article 439.[4] Accordingly, if the court of first instance or the regional court of appeal resisted in its decision and the decision was appealed, the review was conducted by the General Assembly.[5]
In the doctrine, it is stated by Kuru that the decision of resistance shall consist of two parts. Accordingly, Kuru states that in the first part, the reasoning as to the ground upon which the court has resisted its former decision shall be indicated,[6] and in the second part, the court shall reiterate the decision that has been quashed. Furthermore, he states that the court may either incorporate its former decision verbatim into the decision of resistance or may exercise its authority to expand the reasoning of its former decision.[7]
Whereas Pekcanıtez emphasizes that the court rendering a decision of resistance may not alter the decision it has previously rendered but may set forth reasoning that is different and new, and, in any event, that the decision of resistance must be drafted in accordance with the rules concerning the writing of judgments (Article 297 of the CCP), that it may not render a decision of resistance by merely referring to its previous decision.[8]
The Assessment of the General Assembly
The focal point of the Decision has been the question of whether the decision rendered by the court is, in fact, a decision of resistance.
In the Decision, it is stated that, in order to speak of the existence of a decision of resistance, the court must render its decision within the framework of the previous evidence, without gathering new evidence and by drawing inspiration from the quashing decision, and that although the court may expand its reasoning in comparison with its prior decision, it must not alter it.[9]
In addition, in the Decision, it is emphasized that, in the event the court renders its decision by relying upon new evidence or by altering its reasoning through drawing inspiration from the quashing decision or by assessing, in the manner indicated in the quashing decision, a matter that it had not previously addressed, it shall not be possible to speak of the existence of a decision of resistance.
Furthermore, in the Decision, it is stated that, according to the well-established jurisprudence of the Court of Cassation, even if a decision of resistance is rendered by the court, a decision rendered by discussing matters that ought to have been discussed in the quashing decision, by relying upon the research, examination, or newly gathered evidence conducted after the quashing, or by issuing a judgment based upon new and different reasoning that was not included in the prior decision and has not been subjected to the review of the specialized chamber, shall not be deemed a decision of resistance and shall be regarded as a new judgment.
In the context of the present case, it is stated in the Decision that, following the quashing decision, the court examined other court files and the commercial registry records and rendered a “decision of resistance” on the basis of the assessment it made as a result of these examinations.
Within this framework, it is assessed in the Decision that the decision characterized as a decision of resistance by the court of first instance is, in terms of procedural law, not a genuine decision of resistance; rather, it is of the nature of a new judgment based on new evidence and reasoning that had not been discussed and assessed in the initial decision. In this regard, it is concluded and opined that the authority to conduct the appellate review of the newly rendered judgment belongs not to the General Assembly, but to the specialized chamber.
Conclusion
The focal point of the Decision subject to review has been the question of whether the decision referred to as a “decision of resistance” is, in terms of procedural law, a genuine decision of resistance.
The Decision is noteworthy in that it first addresses the distinction between a decision of resistance and a new judgment and, depending on the conclusion to be reached therefrom, indicates the authority competent to conduct the appellate review.
From the assessments contained in the Decision, it is understood that the General Assembly is of the opinion that, in the event the court renders its decision by relying upon new evidence or by altering its reasoning through drawing inspiration from the quashing decision or by assessing, in the manner indicated in the quashing decision, a matter that it had not previously addressed, it shall not be possible to speak of the existence of a decision of resistance.
Accordingly, it must be borne in mind that the mere fact that a decision is designated by the court as a decision of resistance is not, by itself, sufficient for that decision to be deemed a decision of resistance, and that such decisions may be regarded as a new judgment.
- From the excerpts of the reasoning contained in the Decision, it is understood that a decision had previously been rendered in the file by the court of first instance, that this decision was quashed by the now-abolished 23rd Civil Chamber of the Court of Cassation, and that, upon the court’s compliance with the quashing decision, a renewed investigation was conducted. It is understood that the decision of the court of first instance subject to the review of the Decision is the decision rendered because of the retrial conducted in compliance with the quashing decision.
- As explained within the scope of the article, under the applicable legislation, there exists a procedure whereby decisions of resistance are to be reviewed primarily by the chamber whose decision has been resisted. Although it cannot be clearly understood from the Decision, if it has occurred that the decision of resistance was transmitted directly to the General Assembly without being sent to the specialized chamber, it may be questioned whether this was done pursuant to Article 373/6 of the CCP, which provides that: “In the event that the decision rendered by complying with the quashing that contains the dismissal or acceptance of the action on the merits is quashed anew in such a manner as to eliminate the previous quashing, the appellate review of the decision rendered by the lower court shall, in any case, be conducted by the Court of Cassation General Assembly on Civil Matters.”
- The provision was amended by Article 43 of Law No. 6763 dated 24.11.2016. The phrase previously contained in the paragraph, “shall be conducted by the Court of Cassation General Assembly on Civil Matters,” was amended to read: “shall be conducted by the chamber whose decision has been resisted. The decision of resistance shall be reviewed as a priority. If the chamber deems the decision of resistance well-founded, it corrects its own decision; if it does not, it transmits the file to the Court of Cassation General Assembly on Civil Matters.” Through this amendment, the practice of transmitting decisions of resistance directly to the General Assembly was abandoned, and, instead, the procedure whereby decisions of resistance are to be reviewed primarily by the chamber whose decision has been resisted was adopted.
- The article number is as amended by Article 16 of Law No. 5236 dated 26.09.2004. The article number prior to this amendment was Article 429.
- However, by virtue of the Provisional Article 4 added to the CCP by Law No. 6763, it is regulated that, in respect of the quashing decisions rendered by the civil chambers of the Court of Cassation concerning decisions issued prior to the date on which the regional courts of appeal commenced their functions, the decisions of resistance rendered by the courts shall be transmitted to the chamber whose decision has been resisted. See: Pekcanıtez, Hakan / Atalay, Oğuz / Özekes, Muhammet: Medeni Usul Hukuku Temel Bilgiler, 12th Edition, 2018, İstanbul, p. 384 (Cited as: Pekcanıtez) for the amendment made regarding decisions of resistance rendered under the repealed Code of Civil Procedure No. 1086.
- Kuru, Baki: Medeni Usul Hukuku El Kitabı, Volume 2, 2021, Ankara, p. 1431.
- Kuru, p. 1432.
- Pekcanıtez, p. 352.
- Evaluations in a similar vein are also included in the earlier decisions of the General Assembly. In its decision dated 20.02.2013 and numbered 2012/672 E. and 2013/263 K., the General Assembly stated that, in order to speak of the existence of a decision of resistance, the court must render its decision within the framework of the previous evidence without gathering any new evidence by drawing inspiration from the quashing decision, and that, although it may expand its reasoning in comparison with its prior decision, it must not alter it. In the General Assembly’s decision dated 18.04.2018 and numbered 2016/1582 E. and 2018/801 K., on the other hand, it occurred that the court rendered a decision of resistance by based on evidence and facts that had not been discussed and evaluated in the first decision and had therefore not been subjected to the review of the specialized chamber; and the General Assembly determined that the decision was of the nature of a new judgment based on new evidence and facts that emerged after the quashing decision.
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