e-book2013

NEWSLETTER 2013

294

A Comparison of the Obligation to Provide Evidence by Docu-

ment and It’s Exceptions under the Former and Current Code

Under the principle of providing evidence by document, the document

is regarded by scholars and the practice as the most valuable evidence.

Documentation is the fundamental means of evidence in our legal

system. Likewise, it is considered that the witness may, with or without

intention, testify against the truth. These principles are conserved in the

CCP. The principle of the judge’s discretionary power on evaluating the

evidence, which is also included in the CCP, is set forth in Article 240

of the Former CCP as follows:

“The judge is to decide at his discretion

and conviction regarding the established evidence unless otherwise set

forth by this Act.”

According to Article 198 of the CCP: “

The judge is

to decide at his discretion and conviction except stipulated otherwise

by the statutory rules.”

This provision set forth by the CCP has a small

difference. According to said provision, Acts other than the CCP can

bring restrictions on the evidence.

Article 200 of the CCP, which sets forth the “Obligation to provide

evidence by Documentation”, reads as follows:

“(1) Legal acts performed in order to originate, assign, modify,

renew, postpone, confess and redeem a right shall be proven by

documentation if their value at the time they were performed

exceeds two thousand five hundred Turkish Liras. Such legal acts

cannot be proven by other means than documentation even if their

value or amount falls under two thousand five hundred Turkish

Liras by payment or quittance.

(2)For issues that shall be proven under this provision, a witness

can be heard with explicit consent of the opposing party after

reminding the regulation of the first paragraph.”

The statement “cannot be proven by means other than document”

is preserved in the new Code. In the second paragraph of the article, the

exception of hearing witnesses with explicit consent of the opposing

party, which was explained in Article 289 of the former Code, is set forth.

Accordingly, a witness can be heard for issues that are required to be

proven by documentation with the explicit consent of the opposing party

after being reminded of said provision.