Differences Between Contested and Non-Contested Jurisdiction

Entrance

In the Turkish civil litigation system, cases are divided into two main categories: contentious and non-contentious judicial matters . This distinction is of great importance not only from a procedural technical point of view, but also in terms of the role of the court, the position of the parties, and the legal consequences of the decision .

With the enactment of the Code of Civil Procedure No. 6100, non-contentious proceedings were systematically regulated for the first time and took their place in modern law.
This article will examine in detail the definitions of contentious and non-contentious proceedings, the differences between them, their areas of application, and their consequences.

What is adversarial litigation?

Contested litigation where there is a dispute between parties and this dispute is resolved by a court .
Here, there are two opposing parties:

The plaintiffclaims that their rights have been violated.
The defendant either denies the allegation or presents a defense.

Therefore, at the heart of adversarial litigation the violation of rights and a conflict of interest .
For example, a divorce case, a rent collection case, or a compensation case are examples of adversarial litigation.

The primary aim of adversarial proceedings is to ascertain the material truth and resolve the dispute with a definitive judgment .
In such proceedings, the judge is bound by the evidence presented by the parties; they cannot conduct investigations ex officio.

What is Non-Contentious Jurisdiction?

Non-contentious litigation where there is no dispute or conflict of interest, and it is based solely the determination or regulation of a legal situation .

In the Code of Civil Procedure, non-contentious proceedings were explicitly defined for the first time with Law No. 6100. Here, the term " requesting party" or "relevant party" is used , rather than the plaintiff-defendant relationship .

Examples:

Issuance of inheritance certificate,
Name and surname change,
Declaration of absence,
Coming of age (judgment of maturity),
Age correction case.

There is no violation of rights in such proceedings ; only a legal determination of a situation is sought.

Comparison of Adversarial and Non-Adversarial Judgments

The fundamental differences between the two types of judgment are systematically explained under the following headings:

1. Existence of Dispute

In adversarial litigation, there is a dispute; one party claims that the other has violated their rights.
In non-contentious litigation, there is no dispute; only the determination of a legal situation is sought.

2. The Concept of Party

In adversarial proceedings, a plaintiff and a defendant .
In non-contentious proceedings, the claimant or interested party ; there is no opposing party.

3. The Role of the Judge

In adversarial proceedings, the judge is bound by the evidence presented by the parties. (The principle of evidence presented by the parties)
In non-contentious proceedings, the judge can independently gather evidence and investigate the incident, in accordance with the principle of ex officio investigation

4. Trial Procedure

In adversarial proceedings , written procedure is generally applied.
In non-contentious proceedings, the simplified procedure applies.

5. Final Judgment

Decisions rendered in adversarial proceedings constitute a final judgment in a substantive sense
Decisions rendered in non-contentious proceedings are not final; the judge may change their decision if necessary.

6. Judicial Holiday Status

Contested legal proceedings are not heard during the judicial recess.
Non-contentious judicial matters can be heard even during the judicial recess.

7. Court Type

In adversarial proceedings, the competent court a civil court of first instance, family court, commercial court, labor court , or consumer court, .
In non-contentious legal matters , the civil court of first instance generally has jurisdiction.

However, uncontested matters relating to family law by the family court, while commercial matters the commercial court of first instance .

The Principle of Ex Officio Investigation in Non-Contentious Proceedings

This principle is the most distinctive feature of non-contentious justice.
The judge is not limited to the evidence presented by the parties; he/she can conduct any investigation deemed necessary.
This is of great importance, especially inheritance certificates, declarations of absence, and guardianship .

The aim is to protect the legal order, regardless of the will of individuals .

The Principle of Presentation by the Parties in Contested Proceedings

The essence of adversarial litigation rests on the principle that "the claimant bears the burden of proof."
The parties formulate their own claims and defenses, present their evidence, and submit it to the judge.
The judge is bound by the parties' statements and cannot independently gather evidence.
This ensures the equality of the parties and the impartiality of the trial.

Characteristics of Non-Contentious Judicial Proceedings

Decisions can be reversed: If a judge realizes that a decision was wrong, they can issue a new one.
It relates to public order: Most non-contentious judicial proceedings involve regulations for the benefit of society.
Appeal is possible, but cassation is not: The parties may file an appeal against the decision within two weeks ; however, cassation is not possible.
Action is taken upon request: Even if action is taken ex officio, there is usually a request or application.

Distinction Between Contested and Non-Contested Jurisdiction: Examples

Type of Judiciary	Case study	Explanation
Contentious Judgment	Divorce case	There is a conflict of interest between the parties.
Contentious Judgment	Rent collection lawsuit	The plaintiff claims to be owed money, while the defendant claims to have no debt.
Non-contentious Judgment	Request for inheritance certificate	There is no dispute, it's simply a matter of assessing the situation.
Non-contentious Judgment	Name and surname change	The judge evaluates it from the perspective of public order.

The Legal Significance of Non-Contentious Jurisdiction

Non-contentious jurisdiction protects not only the interests of individuals but also the legal order of the state . In this respect, it fulfills the function of judicial bodies in " administrative legal determination "

Furthermore, non-contentious judicial proceedings constitute a prerequisite for litigation in many areas. For example, inheritance cannot be distributed without a certificate of inheritance; in other words, a non-contentious judicial decision is a prerequisite for contentious litigation.

Common Confusions in Practice

Sometimes in practice, doubts arise as to whether a judicial matter is contentious or non-contentious.
For example:

the issuance of a certificate of inheritance is a non-contentious judicial act,
The cancellation of a certificate of inheritance is a contentious legal process.

Similarly, age correction is a non-contentious matter; however, it becomes contested if there is fraud or an objection in the process.
This difference directly affects which court the case will be heard in.

Conclusion

The distinction between adversarial and non-contentious litigation is one of the cornerstones of the civil justice system. This distinction clarifies the division of labor among courts and establishes a structured system for judicial procedures

Contested litigation resolves conflicts between individuals, while non-contentious litigation ensures social peace by maintaining the rule of law.
In a sense, one is a means of seeking justice, while the other is a means of regulating the law.

Both types of justice, together, represent both the individual and societal aspects of justice

Contested litigation, non-contentious litigation, declaration of absence, non-contentious litigation under the Code of Civil Procedure, appeal, civil procedure law, certificate of inheritance, principle of ex officio investigation, jurisdiction of the magistrates' court, principle of presentation by the parties

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