The Principle of Party Formation in Hostility and Litigation
Entrance
For a case to proceed properly, the right people must be involved in the dispute.
In other words, if it's not correctly determined who the plaintiff and who the defendant are, the outcome of the trial will have no legal significance.
This is where of hostility and party formation come into play.
These two concepts the backbone of the party system .
A lawsuit filed against the wrong person is like a "case never born" from the outset; even if a decision is made, it will not produce a valid result.
This article will examine the concept of standing, the distinction between active and passive standing, the principle of party formation, and Supreme Court precedents.
1. The Concept of Hostility
Definition
Hostility refers to the agreement between the parties to a lawsuit regarding a claimed right or obligation . In other words, it answers the question of who should be the plaintiff and who should be the defendant.
Hostility is a prerequisite for a lawsuit to be directed at the correct person .
A lawsuit directed at the wrong person will be dismissed on its merits.
Example:
In a rental dispute, if the lawsuit is filed against the tenant's sibling instead of the tenant, a lack of passive standing .
2. Active and Passive Hostility
a) Active Hostility
It refers to the person who has the right to file a lawsuit.
In other words, the plaintiff.
For example, in the case of an infringement of a property owner's rights, the owner must file the lawsuit.
The tenant or a third party is not an active party to the lawsuit.
b) Passive Hostility
It refers to the person who should be the defendant in the case . That is, the person who violated the right or is responsible for the debt.
For example, an enforcement denial compensation lawsuit filed against the guarantor instead of the debtor → lack of passive standing.
3. Consequences of the Absence of Hostility
Standing is not a prerequisite for a lawsuit but substantive element.
Therefore, when the court determines that there is no standing, it dismisses the case on its merits.
Supreme Court 15th Civil Chamber, Case No. 2020/4218, Decision No. 2021/6784.
"The lack of standing is not a deficiency in the procedural requirements, but a substantive issue. Therefore, the case should be dismissed on its merits."
Results:
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The judge cannot conduct an investigation on his own initiative; it depends on the claims of the parties.
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If the parties are incorrectly identified, the case will not be dismissed, but will be rejected on its merits.
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The case can be reopened once the correct party is identified.
4. Principle of Party Formation
Definition
Formation of parties refers to the complete and accurate identification of the individuals who should be involved in the case . This principle is an extension of the right to a fair trial and the right to be heard in court .
Aim
The decision rendered as a result of the trial,
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Connecting the right people,
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It must be feasible
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For a judgment to have the effect of a final decision,
the parties must be fully constituted.
Legal Basis
HMK Article 27:
"The parties have the right to present their claims and defenses, submit their evidence, and make requests to the court."
This article demonstrates that the formation of parties is directly linked to the right to a fair hearing
5. Ensuring the Formation of the Party
The formation of parties in a lawsuit is ensured under the supervision of the court. The court verifies whether the person filing the lawsuit or the person named as defendant are actually the relevant parties
If one of the parties has been misrepresented:
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The court gives the plaintiff time to include the correct party in the case
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A change of party may be made if necessary (Code of Civil Procedure, Article 124).
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This change allows the case to continue; there is no need to file a new lawsuit.
Example:
In a real estate lawsuit, if the tenant is mistakenly named as the defendant instead of the owner, the judge grants the plaintiff the option to include the owner as a party to the lawsuit.
6. Change of Party (Code of Civil Procedure, Article 124)
A change of party is the process of replacing the wrong party with the correct one .
This process does not require reopening the case; the existing case continues.
Terms and conditions:
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The wrong party was mistakenly named in the lawsuit petition ,
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the judge's permission,
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Consent of the other party is required (sometimes not required).
This arrangement procedural efficiency .
Example:
If a subcontractor's employee mistakenly files a lawsuit against the main employer instead of the subcontractor for unpaid wages, a switch of parties may be made.
7. Mandatory Joinder of Parties and Formation of Parties
In some lawsuits, more than one person must be a party to the case; this compulsory joinder of parties .
If one of these individuals is not included in the lawsuit, the party formation is incomplete.
Examples:
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Joint ownership (shared real estate) cases,
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Renunciation or distribution of inheritance,
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Lawsuits concerning the dissolution of partnerships between company partners.
The court cannot render a judgment without completing the formation of the parties if one of the mandatory co-defendants is not present in the case.
Supreme Court Grand Chamber, Case No. 2020/1234, Decision No. 2021/889.
"In cases where mandatory joinder of parties is required, all parties must participate in the case in accordance with proper procedure. Otherwise, a judgment cannot be rendered without ensuring proper party representation."
8. The Difference Between Hostility – Formation of Parties – Conditions for Filing a Lawsuit
| Concept | Definition | Legal Nature | Conclusion |
|---|---|---|---|
| Animosity | Plaintiffs should sue the right person | Regarding the merits | The case is dismissed on its merits |
| Formation of a Party | All necessary parties must be present in the case | Procedural | The lawsuit cannot proceed if a party is missing |
| Condition for filing a lawsuit | Prerequisites for filing a lawsuit | Regarding public order | If the deficiency is not remedied, the case will be dismissed on procedural grounds |
This table shows that the concepts are related but have different legal consequences.
9. Examples from Supreme Court Case Law
The 14th Civil Chamber of the Supreme Court of Appeals, Case No. 2021/4321 E., Decision No. 2022/3154 K., stated:
“A judgment rendered without ensuring proper party representation is contrary to procedure and law. The merits of the case cannot be considered until the missing parties are remedied.”
The 3rd Civil Chamber of the Supreme Court of Appeals, Case No. 2020/3112 E., Decision No. 2021/5011 K., stated
: "If the lawsuit is filed against the wrong person, it shall be dismissed on its merits due to lack of passive standing."
These decisions reflect the courts' rigor in determining which side is involved.
10. Common Errors in Application
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Filing a lawsuit against the wrong person:
Plainting a lawsuit against the tenant's spouse instead of the tenant, or against a company employee instead of the employer. -
Filing a lawsuit against a branch instead of the legal entity:
Branches do not have legal personality; the defendant must be the company. -
Failure to include all heirs in inheritance cases
constitutes a deficiency in party representation, and a judgment cannot be rendered. -
Filing a lawsuit in jointly owned real estate on behalf of a single owner:
Party formation is not ensured until all co-owners are identified.
Conclusion
The formation of parties and the establishment of the correct parties are two fundamental concepts that guarantee the personal integrity of a trial. A decision rendered without correctly identifying the right party is legally considered a "null and void judgment."
Therefore, the court must ensure proper party representation from the outset of the case; it must also allow for the correction of any incorrect party selection.
"Unless justice reaches the rightful person,
a verdict is merely a piece of paper."
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