Litis contestatio in Roman procedural law and its effects on the preliminary examination stage in Turkish civil procedural law

In Roman Law, litis contestatio is a legal procedure that divides the proceedings in the Roman Civil Procedure in the classical period, which consists of a two-stage procedure due to its basic nature, into two different stages, namely the in iure and apud iudicem stages, and as such, constitutes the center of gravity of the proceedings and is mandatory for the commencement of the trial and the investigation in the modern sense. The litis contestatio, whose nature in the legis actio procedure was the determination of the words spoken and actions performed in the in iure stage before witnesses in order to be used as evidence in the apud iudicem stage, gained the character of a judicial agreement between the parties in the formulary procedure and, in accordance with its provisions and consequences, it was a judicial agreement between the parties to have the case heard by the arbitrator before the praetor. Upon the termination of the formulary procedure and the abandonment of the two-stage trial procedure and the adoption of the single-stage the procedure extra ordinem as the general trial procedure, the litis contestatio, which lost its former provisions and qualifications, became only a momentary qualification. In the five-stage first instance trial system introduced by the Code of Civil Procedure No. 6100, which entered into force on 01.10.2011, the preliminary examination stage or institution, which is considered one of the most important legal institutions introduced to our legal system, is regulated as an independent stage of the proceedings under Art. 137-142 to 320 of the Code of Civil Procedure. At the preliminary examination stage, it is aimed to conduct the investigation in a planned and specific order by making preparations before the investigation stage, to complete the proceedings as quickly and in a short time as possible, and to resolve the dispute amicably by encouraging the parties to settle and mediate in cases that can be freely disposed of. In the first part of the study, general and brief information about the Roman Procedural Law is given and the historical development of the procedural law is mentioned. In this section, the relationship between the concept of actio-ius, which can be considered as the basis of Roman Procedural Law, and the judicial qualifications of the praetor's office are emphasized. Then, the development process of procedural law leading to the Judicial System is analyzed. In the second part, after analyzing the litis contestatio in terms of terminology, concepts and opinions, the position of the litis contestatio in the proceedings is analyzed in detail together with the basic features of the proceedings. In the third part, the provisions and consequences of litis contestatio in the formulary procedure are analyzed and compared with some similar institutions. In the fourth part, the preliminary examination stage is analyzed in detail in line with the systematics of the Code of Civil Procedure. In the fifth and final part, litis contestatio and the preliminary examination stage are mutually evaluated under several headings.