KÜHEYLAN HUKUK
This guide has been prepared based on the current provisions of the Execution and Bankruptcy Law No. 2004 and the jurisprudence of the General Assembly of the Supreme Court of Appeals.
Summary A negative determination case is a lawsuit filed by a person who is subject to enforcement proceedings or is threatened with enforcement due to a debt that does not actually exist, to determine that he is not a debtor in accordance with Article 72 of the Enforcement and Bankruptcy Law. This lawsuit, which can be filed before, during or even after the prosecution is finalized, can also stop the enforcement proceedings through interim measures, if the conditions are met. If the debtor missed the objection period and actually paid the debt under the pressure of foreclosure, he should no longer apply for a negative determination but for a recovery lawsuit aimed at the return of the money paid; As a matter of fact, if the debt is paid while the case is ongoing, the court automatically continues the trial as a recovery case.
1. What is a Negative Determination Case? Negative determination literally means "negative determination"; In legal terms, it refers to the court's determination that a debt relationship claimed by the creditor does not actually exist. Article 72 of the Enforcement and Bankruptcy Law provides the opportunity for a person who is not actually a debtor but is subject to enforcement proceedings or faces the threat of being subject to filing a lawsuit in general courts to eliminate this situation. The most distinctive feature of this case is that it can be filed at three different stages of the enforcement proceeding: before the prosecution begins, while the pursuit is ongoing, or after the proceedings become final because there is no objection in accordance with the procedure or the objection has been removed. Even if the debtor has not objected to the payment order or his objection has not been deemed appropriate, he may claim that he is not a debtor in terms of substantive law through a negative declaratory action; The finalization of the enforcement proceeding does not mean a judicial decision that finally determines the actual legal relationship of the parties.
2. Conditions for Filing a Negative Declaration Case Since the negative declaratory action is a special type of declaratory actions regulated in Article 106 of the Code of Civil Procedure, the rules regarding general declaratory actions are also applied to this case. In this context, in order for the case to be accepted, several basic conditions must be present. First of all, the plaintiff must have a current and legally protected interest; The person must establish that he or she is faced with a real threat of debt claim or pursuit, and not just a possible concern. It is considered sufficient for the existence of this benefit if the creditor has actually initiated enforcement proceedings or has seriously asserted his debt demand through a warning, protest or other correspondence. Secondly, a lawsuit for cancellation of objection or a direct claim for the same debt must not have been previously filed; Otherwise, a second trial cannot be held on the same dispute. Finally, the debt must not yet be paid at the time the lawsuit is filed; If the debt has already been paid, the plaintiff's aim is no longer to determine indebtedness, but to return the price paid, so the lawsuit that needs to be filed is a recovery lawsuit.
3. Types of Cases: Cases Filed Before and After Pursuit 3.1. Negative Declaration Case Filed Before Enforcement Proceedings Negative declaratory suits filed before the prosecution begins are preventive in nature. Here, the plaintiff claims that he is in legal uncertainty due to a notice, protest or similar correspondence sent by the creditor, even though he has not yet received a payment order. The precautionary measure that can be requested at this stage appears in the form of a "non-prosecution" decision that prevents any enforcement proceedings that the creditor may initiate in the future.
3.2. Negative Declaration Case Filed After Enforcement Proceedings Lawsuits filed after the prosecution has started are of a suspensive nature; The debtor files a lawsuit claiming that he is not indebted upon the payment order notified to him. As a rule, the legal benefit requirement in a negative declaratory action filed after the prosecution has started becomes controversial if the debtor has already stopped the proceedings by objecting to the payment order in time; Because there is often no legal benefit in filing a lawsuit once the pursuit has stopped. On the other hand, if the debtor has not objected in time or if his objection has been eliminated by the creditor by removing the objection, it is accepted that he has a legal interest in filing a negative declaratory suit.
4. Suspension of the Proceedings with Precautionary Measures Filing a negative declaratory action alone does not stop the enforcement proceedings; The impact of the case on enforcement varies depending on when the case is filed. In the case filed before the prosecution: In accordance with Article 72/2 of the EBL, the court may, upon the request of the plaintiff, issue an interim injunction to stop the enforcement proceedings, in return for a guarantee not less than fifteen percent of the receivable. This decision does not eliminate the creditor's right to initiate proceedings; It only prevents actual foreclosure proceedings. In the case filed after the pursuit: In accordance with Article 72/3 of the EBL, it is not possible to directly stop the pursuit through interim measures at this stage. Instead, the debtor may request that the money in the enforcement cashier not be paid to the creditor, along with the security he provides, which is not less than fifteen percent of the receivable. In practice, the debtor deposits the entire debt, including the principal receivable, interest and expenses, to the enforcement cashier and provides an additional fifteen percent guarantee; In total, this usually corresponds to an assurance of around one hundred and fifteen percent of the pursuit amount. This regulation aims to prevent liens exceeding the amount of debt on file.
5. Burden of Proof and Evidence Who has the burden of proof in a negative declaratory case varies depending on the nature of the defense put forward by the plaintiff. If the plaintiff debtor claims that the debt relationship on which the creditor is based never arose, that is, such a relationship did not exist from the beginning, the burden of proof passes to the creditor (defendant); because it is the party that claims the existence of the legal relationship. On the other hand, if the debtor claims that the debt ended later for a reason such as payment, discharge or exchange, the burden of proving this claim belongs to him. Since the case is subject to the general provisions of the Code of Civil Procedure, all evidence such as written documents, witness statements, expert examination, discovery, oath and party declaration can be used. However, if the basis of the receivable is a bill of exchange such as a check, bill or bill of exchange, the rule of "proof with a bill against a bill" comes into play and the claim of invalidity of the bill cannot be proven with a witness as a rule; In this case, written evidence is required.
6. Conclusion of the Case: Consequences in Case of Acceptance and Rejection If the court decides that the plaintiff is not indebted at the end of the trial, it decides to accept the case. Once this decision is made, the ongoing enforcement proceedings will immediately stop - without waiting for its finalization; Once the decision is finalized, the proceedings are completely annulled, the liens placed are lifted and the price of the sold goods, if any, is returned to the debtor. If it is understood that the creditor initiated the proceedings unfairly and in bad faith and the debtor requests this, the court may order bad faith compensation against the creditor at the rate of at least twenty percent of the receivable in question. According to the established jurisprudence of the General Assembly of the Supreme Court of Appeals, it is not enough for the pursuit to be unfair for this compensation to arise; It is also required that the creditor has initiated pursuit even though he knew or should have known that he did not have a receivable, that is, he had acted in bad faith. If the court rejects the case, the previously issued interim injunction decision is lifted and enforcement proceedings continue where they left off. In addition, in accordance with Article 72/4 of the EBL, since the creditor is deemed to have received his receivable late, the court sentences the debtor to an enforcement denial compensation of at least twenty percent of the receivable - without any request in this regard. The parts of these decisions regarding attorney fees and compensation can only be enforced after they are finalized.
7. Conversion from a Negative Determination Case to a Recovery Case. While the negative determination case is ongoing, if the debtor is obliged to actually pay the debt subject to follow-up to the creditor - because he cannot obtain a precautionary injunction decision or the measure taken has been lifted - the case automatically turns into a recovery case in accordance with Article 72/6 of the EBL; The debtor does not need to make a separate request for this. From the moment the court learns that the payment has been made, the court continues the trial as a recovery case and, if the case is accepted, decides to return the amount paid by the debtor. If a negative determination lawsuit has never been filed and the debtor has to pay the debt in full under the threat of enforcement, an independent recovery lawsuit can be filed directly in accordance with Article 72/7 of the EBL. In order to file this lawsuit, a period of one year must be complied with from the date of payment; This period is of a detrimental nature and is automatically observed by the court.
Criteria Negative Determination Case Sequestration Case Purpose Determination of not being indebted To recover the money paid unjustly When it can be filed Before/during the follow-up Before the debt is paid yet After the debt is actually paid Duration As a rule, there is no special forfeiture period 1 year from the date of payment (reducer of rights) Effect on Enforcement Proceeding stops with precautionary measures if the conditions are met Proceeding is already over, there is no issue left Conversion If payment is made during the case, it turns into a claim Can be filed directly or negatively 8. Competent and Competent Court The competent court is determined according to the nature of the receivable in question: commercial court of first instance for commercial receivables, labor court for labor receivables, civil court of peace for receivables arising from lease or condominium relations, and consumer court for receivables arising from consumer transactions; In cases where there is no special duty rule, the civil court of first instance is deemed to have jurisdiction. Since the rules of duty are related to public order, they are automatically observed by the court. The competent court is the court where the enforcement office carrying out the proceedings is located or the local court determined in accordance with the general and special jurisdiction rules in the Code of Civil Procedure. Since authority, unlike duty, is not related to public order, it is not automatically examined by the court; The relevant party must submit a jurisdictional objection within the deadline.
9. Time: Statute of Limitations and Limiting Periods There is no statute of limitations specifically stipulated in the law for negative declaratory action; The period to which the case is subject is the statute of limitations of the legal relationship relied upon. The Supreme Court case law consistently emphasizes that as long as the enforcement proceeding file is pending, the statute of limitations does not apply for the receivable in question. On the other hand, it is not possible for the debtor who does not assert the statute of limitations defense while objecting to the payment order to later file a negative declaratory action based on this reason; This right is deemed to be lost if it is not used in due time. The situation is different in terms of a recovery lawsuit: the debtor must file a recovery lawsuit within one year from the date of payment of the debt. This one-year period is derogatory and is investigated by the court ex officio; If the period expires, the right to file a lawsuit terminates definitively.
Concrete Application Scenario CASE SUMMARY FORM A software company partner learned that enforcement proceedings were initiated against him based on a debt instrument allegedly signed between him and his former business partner. The debtor thinks that the promissory note in question is not based on a real debt relationship, that it was signed only for collateral purposes during the establishment of the partnership, and that it should be returned when the company shares are transferred. He objected to the payment order in due time, but the creditor applied to the enforcement court to request the removal of the objection.
APPLICATION AND LEGAL PROCESS Although Küheylan Law Firm is preparing a defense against the request to remove the objection, it has also suggested that a negative declaratory action be filed in the commercial court of first instance in order to clearly demonstrate that the bond is unfounded. In the petition, correspondence between the partners, draft protocols regarding the share transfer and documents showing the financial situation on the date the promissory note was issued were submitted as evidence, and it was requested to stop the enforcement proceedings through preliminary injunction by depositing a guarantee of fifteen percent of the receivable.
CONCLUSION The court concluded that the promissory note did not reflect a real debt relationship, due to the submitted correspondence and strong indications that it was issued for collateral purposes, and decided to accept the case. With the finalization of the decision, the enforcement proceedings were completely canceled and the collateral deposited by the debtor was returned.
10. Frequently Asked Questions Do enforcement proceedings have to have started in order to file a negative declaratory action? No. The law clearly stipulates that the lawsuit can be filed before, during or after the enforcement proceeding. In order to file a lawsuit before the prosecution begins, it is sufficient for the debtor to have received a warning or a similar serious debt demand from the creditor or to have demonstrated that he is in a legally risky situation. The pursuit has already stopped because I objected. Do I also need to file a negative declaratory case? Since a timely objection has already stopped the proceedings, there is often no legal benefit in filing a negative declaratory suit at this stage. However, if there is a risk that the objection will be eliminated by the creditor by removing the objection or if the debtor has missed the objection period, there is a legal benefit in filing a negative declaratory action.
If the debt is paid to the enforcement officer while the case is ongoing, will my case be dismissed? No, the case will not be dismissed; In accordance with the law, the court continues to try the case as an automatic recovery case. The debtor does not need to make a separate request for this conversion.
How much compensation will I have to pay if I lose the case? If the case is rejected, since the creditor will be deemed to have received his receivable late, the court will award enforcement denial compensation of at least twenty percent of the receivable in question, without any request. Therefore, it is important to carefully evaluate the strength of the evidence before filing a lawsuit.
Attention: Frequently Made Mistakes in the Process Trying to file a negative determination case after paying the debt: If the debt has actually been paid, no longer a negative determination, but a recovery case subject to a one-year limitation period should be filed. Not asserting the statute of limitations defense at the enforcement stage: The debtor who does not raise the statute of limitations defense during the objection to the payment order cannot subsequently file a negative declaratory suit based on this reason. Overlooking the guarantee requirement: Stopping the proceedings through injunction depends on depositing a guarantee of at least fifteen percent of the receivable; If this step is skipped, tracking will continue to stop. Forgetting the claim for bad faith compensation: Even if the case is accepted, the debtor must have clearly requested it in order for compensation to be awarded against the creditor; Unclaimed compensation is not automatically decided by the court.
Conclusion Negative declaratory action is a powerful legal tool that offers a final solution at the substantive law level for people who are under the threat of enforcement proceedings even though they are not actually debtors. However, the time of filing the case, the correct construction of the legal benefit condition, the calculation of the collateral in the request for injunction and the correct management of the conversion mechanism into a recovery case in case the debt is paid during the case are decisive for the successful conclusion of the process. With its knowledge of the current legislation in the field of enforcement and bankruptcy law and the jurisprudence of the General Assembly of the Supreme Court of Appeals, Küheylan Law Firm offers comprehensive legal support to its clients, from the preparation phase of negative declaratory and recovery cases to requests for injunctions and the trial process.
Hunting. Mert Deniz Küheylan Important Legal Notice: The legal explanations in this guide have been prepared by Küheylan Law Firm for general information purposes and do not constitute legal advice. Since the unique circumstances of each file may change the outcome, it is recommended to seek support from an enforcement law attorney from the beginning of the process. Küheylan Law Firm — © 2026 All Rights Reserved.
KÜHEYLAN HUKUK