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NEWS LETTER 2 0 1 0
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By the legal arrangement in Article 87, the claimant gained the right
to file a partial case and had the chance to increase a claim by amendment.
In partial cases, the competent court is determined according to the
value of the claim of the whole case and not to the value of claim in the
partial case pursuant to Article 4 of the Code of Civil Procedure. Thus,
changing the competent court by dividing the case is prevented. Also, the
existence of the right to file an appeal is determined according to the value
of the claim of the whole case.
The amendment petition, which is filed by the claimant in a partial
case, triggers a new phase in the case, which is provided for by Article 195
et seq. The claim stated in the amendment petition should be considered a
new case, and a new defense is to be filed against the amendment petition.
It is not always possible to file a partial case. For example, the Court of
Appeal does not permit filing of a partial case in lawsuits concerning moral
compensation. It is pointed that the moral compensation shall not be divided
since the discretion of judge may not be divided. In another decision, the
Court of Appeal stated that it is not possible to file a partial case for default
interest. It is also impossible to bring partial cases in adaptation cases
concerning changes in conditions and unanticipated situations because, “It
is not possible to reserve rights concerning an amount that the judge can
determine by intervening in an agreement of the parties.”
According to court decisions and doctrine, partial claims do not
suspend the limitation period for the remaining part which is not filed
with the partial case. The limitation period is only suspended for the claim
which is filed in the partial case.
Another advantage of filing a partial case is apparent at the end of the
case if the claim is dismissed. The claimant in the partial case will pay the
attorneys’ fees and court costs, which are calculated according to the value
of the partial claim if the case is completely or partially dismissed. Thus,
it would not undertake the attorneys’ fees and court costs which will be
calculated according to the value of whole case.