Substantiation of process materials in civil procedure

According to the principle of party presentation (Verhandlungsgrundsatz), it is up to the parties to obtain the factual materials. The court bases its ruling only facts submitted and proved by the parties. Evidence may only be taken on the disputed facts. If a not sufficiently substantiated factual allegation is disputed by the other side, the judge will refuse to determine presented evidence. Therefore, every party must concretize related facts in favor of his claim. The aim of this study is to discover how the factual allegations may be substantiated by the parties and which devices of the civil procedure may help the parties in this regard. Due to the prohibition of fishing expedition, setting out the relevant facts and stating evidence is a duty of the parties. If the factual allegation of the case is described in very vague notions, the claim will be rejected. As long as inquisitorial principle (Untersuchungsgrundsatz) is not applicable, the burden of submitting the facts (Behauptungslast) is left to the parties. Every necessary detail must be asserted to substantiate all elements prescribed by the material law. The Parties must mainly rely on their own sources to investigate and gather facts relevant to the case. In certain cases, the defendant has all useful information which the plaintiff needs to substantiate his allegations. Therefore, there must be information devices to help the plaintiff. There are very limited information devices in Turkish Code of Civil Procedure with comparison of German Code of Civil Procedure. First of all, there is not provided such an action by stages (Stufenklage) with the meaning of Art. 254 German Code of Civil Procedure. Although there is a contractual or statutory claim for information under Turkish Law, the litigant can't file an action by stages, but an information action. All necessary information can be gathered to substantiate the allegations after the information action. In this case, it will certainly take a lot of time to reach the requested right granted by material law. Action by stage is a better device for the benefit of the plaintiff. But, it is not applicable in Turkish law. This claim has to be enforced mandatorily in separate lawsuit in Turkey. Furthermore, there is one essential difference between German and Turkish law in respect of information right prior to proceedings. Turkish material law does not regulate statutory claims as many as German law. Even if there is not provided a contractual or statutory claim for information in German law, this right can be granted the plaintiff under certain circumstances based of good faith. There is not such an application of good faith in Turkish legal system. Under Art. 138 (2) German Code of Civil Procedure, the alleged facts which are not challenged by the defendant deemed as true (Geständnisfiktion). It is sufficient often to contest generally the alleged facts. After the plaintiff substantiate allegations in detail, the defendant must contest in detail likewise. In exceptional cases, it is waited to rebut the factual allegations in more detailed way (sekundäre Behauptungslast). Thus, the opponent's response must be more precise, otherwise it will be assumed that the allegation is truthful as claimant indicated. There is not such a procedural obligation on the defendant to deny the allegations in Turkish Code of Civil Procedure. The alleged facts which are not challenged by the defendant deemed as rejected (Bestreitungsfiktion). As a result of this, the claimant in the lack of information to concretize all factual circumstances will lose the case because of the burden of substantiation. The opponent must be enforced to rebut the alleged facts in detail because of equity. Interrogation of the parties (Parteivernehmung) in this sense can be a useful device in Turkish Law. First of all, interrogation of a party is not regulated as an evidence in Turkish Code of Civil Procedure. The party which will be interrogated on a specific allegation must obey the invitation. If he does not appear or answer the question, the allegation will be deemed as true (Geständnisfiktion). The judge has to interrogate the defendant to establish equality of the parties (Waffengleichheit), when the claimant is in lack of information. In this case, the defendant will have to deny the factual allegation in a detailed way. Consequently, the paucity of information may be compensated in this way. As in Germany, there is not provided a general duty (allgemeine Aufklärungspflicht) for the parties to disclose all information in Turkey. As a result of the nemo tenetur principle, it is accepted that no party is obliged to provide his opponent with the materials. According to prevailing view in German Law, it is not a task of civil procedural law to establish such a general duty to disclose all necessary information. In German Law, pre-process rights from the material law to demand information has a broader scope of application than in Turkish Law. Therefore, this approach may be seen reasonable to a certain extent in German Law. But, Turkish substantive law does not provide a claim for information based on good faith, when a potential litigant needs information to concretize his allegations. A general duty for the parties to provide a complete and truthful account of the facts must be regulated in Turkish Code of Civil Procedure. Key Words: Fact, evidence, the principle of party presentation, the burden of submitting the facts, the burden of challenging the facts, the burden of substantiation,the burden of giving evidence.