Repetition of investigation at appeal procedure in Civil Procedural Law

Appeal is a law proces that involves factual and legal rewiew. For this reason the appeal proces manifest it self mostly in the investigation phase at the reginal general courts. Our main subject is the repetitive investigation during the appeal process. The aim of this study is to evaluate the judicial process before the appeal court and to discuss the provisions relating to investigation phase, taking into consideration the French an Swiss Civil Procedural provisions. The aim of the establishment of appelate law review is another aspect. A specific aim of this study is to evaluate these provisions and compare with different examples and also to reach a decision in the context of ideal law. Because one of the reasons that appeal law process provisions are provided is a secondary review that is limited to certain aspects maintaining legal reliability In this respect this study also involves the French appelate system that is different from our system. In our system, making new requests, submitting new evidence and laying down new facts are prohibited in the investigation phase before the court of appeal. In the French system however, new requests are also forbidden but it is possible to submit new evidence and lay down new facts about the case. In this regard this study includes provisions relating to the appeal process in French Civil Procedural Law. Limits of the extent and procedures of the xv in the petition, the dependence of regional general courts with the reasons of appeal will be explained with evaluation of the extent of reasons of appeal. Exception of this rule is the existance of condition relative to public ordre. This means that the regional general courts will make the investigation limited to appeal reasons but will also take in to consideration of the condition that are related to public ordre. İn this regard conditions concerning public ordre will be assesed after that repetitive review of the case materials and requents that have importance in drawing the extant of investigation in appeal process will be examined. With an overwiev of the provisions provided by our code relating to investigation phase before the regional general courts, it is obvious that investigation in appeal process is strictly limited departing from the aim of meritorious review, sometimes also from the basic judicial rules achnowledged by the first instance jurisdiction. The 357th article of Civil procedural code provides that the claims and defences that are not adduced in the first instance will not be taken info consideration besides the ones that the ones due to judicial notice. Regional general court will automatically conside contrediction to the rule of prohition of expansion and alteration of plea and defence. At the appeal process, the scope of examination is limited to the grounds of appeal and so, requests which are stated in parties' petitions. As a rule, however, the regional court of appeal will be limited to a review but will consider on its own initiative in cases related to public order. Determining the scope of public order is left to judicial decisions and doctrine under the law of appeal. Prudently, reasons for xvi appeal of public order to overcome the limitation caused by adherence to the adoption of such a broad concept. The judge's decision is dependent on the request and prohibition of reformatio in peius rules are valid at the appeal. Essentially, to bring a new fact or an evidence is forbidden in the appeal examination process under Turkish law. Some exceptions concerning the new evidences, not the facts, are given. However, the case material should be evaluated as a whole. For this reason, the exceptions foreseen for the evidence should be applied where appropriate in terms of the nature of a fact. Thus, both under the French and the Swiss law, bringing a new fact or evidence is considered within the same scope. Although if an evidence is available at the first instance court but the parties haven't claimed due to the negligence, is not examined at the court of appeal ex officio. However, court of appeal may consider the evidence if it is duly presented by the parties but rejected without examination or can not presented due to force majeur. In this context, it should be considered in terms of the facts. So, court of appeal may examine the fact if it is duly presented by the parties but rejected without examination or can not presented due to force majeur. In the Swiss civil procedural law, new facts and new evidence are only admissible provided they are: invoked without delay; and it was not possible, despite reasonable diligence, to invoke them in the proceedings before the court of first instance. An amendment of the claim is only admissible provided that; the conditions pursuant to article 227 para. 1 are fulfilled and in addition the amendement is based on new facts and means of evidence. An appeal is concerned with the merits of the decision under appeal besides compliance to law. For this reason, bringing new facts and evidences to the court of xvii appeal should be accepted. To regulate an appeal as a remedy which new facts and evidences are not accepted, will extremely limit the purpose to audit of the merits of facts. To regulate an appeal effectively, the scope and the limits of examination should be expedient to the purpose of the appeal; otherwise it will not go further to be so-called remedy need to exhausted.