T.C
SUPREME COURT
GENERAL ASSEMBLY OF LAW
Date: 28.02.2018 Basis: 2017 / 2648 Decision: 2018 / 3070
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
The main case is based on the reason for the “actual separation” contained in Article 166/last of the Turkish Civil Code No. 4721 (TMK), and the merged case is based on Article 166/1 of the same Law. it is related to the request for divorce based on the reason for the “shaking up of the marriage union” contained in the article.
The plaintiff requested that the parties not get together after the finalization of the decision of the divorce case that resulted in the refusal, stating that this period has passed 3 years, be decided to divorce in accordance with Article 166 /son of the TCC.
The defendant decried the plaintiff (female), stating that there was a severe lack of livelihood between the parties for reasons arising from the plaintiff, TMK ’s 166/1. he requested that their divorce be decided in accordance with the article.
The plaintiff argued for the decision to dismiss the cases separately from the plaintiff’s attorney (male) and the plaintiff’s attorney (female) who joined the defendant.
That resulted in the rejection by a local court from the finalization of the divorce, the parties come together, they didn’t, the final court decision, according to the plaintiff of the defendant is flawed, it becomes clear that combined, the loss of the woman of the man, his personality violates the rights of, and thus not shaken the foundation of marriage filed by the Union on the grounds that both parties upon the adoption of the combined defendant, the plaintiff (the women) for the benefit of 20.000,-TL material, 20.000,-TL non-pecuniary damages 600,-TL, it has been judged to measure and alimony.
The decision was overturned by a majority vote by the Special Chamber on the grounds described above upon the appeal of the male deputy of the defendant who joined the plaintiff.
In addition, the local court did not explain what the witnesses they wanted the plaintiff to hear would testify about, and the decision to resist was made on the grounds that the claimant’s request was met according to the three-year separation process, the defect status was determined according to the previous court decision, which was finalized, and the plaintiff’s unified defendant (male) attorney appealed the decision to resist.
By the General Assembly of the Law “…297 of the Code of Civil Procedure No. 6100 (HMK). as stated in the article, the judgment result in part of the grounds given again without any mention of debt and requests about each of the rights recognized under the provisions uploaded by the sequence number of open-doubt and hesitation must be shown in a way that does not attract. As written above, since there is a contradiction between the first decisiveness and the decision to resist, in order for the local court to establish a procedural provision of resistance, the decision had to be overturned in due course without examining the appeals on the merits of the work …”the decision to overturn it by a majority vote was made.
The decision to resist, made by the Local Court in compliance with the decision of the Supreme Court to overturn the General Assembly of the Law, was appealed by the male deputy of the plaintiff, the defendant who united the plaintiff.
The dispute that comes before the General Assembly of the Law by way of resistance is being collected by the court at the point of whether these witnesses should not be listened to, taking into account the fact that the witnesses shown by the man were not stopped from being listened to in the divorce case, which was decided to be merged and opened by the woman due to severe lack of livelihood.
During the negotiations held at the General Assembly of the Law, before examining the merits of the work, it was discussed whether the decision to be appealed was actually a new provision; therefore, the issue of whether the appeal review should be conducted by the General Assembly of the Law or by the Special Department was discussed as a preliminary issue.
As is known, in order for the existence of a decision to resist to be mentioned, the court must decide within the framework of the evidence before collecting any new evidence inspired by the decision to overturn it; if it can expand its justification according to its previous decision, it should not change it.
In other words, if the court has decided by changing its reasoning based on a new evidence or inspired by distorting it, or by evaluating it in the way indicated in distorting an issue that it has not previously focused on, there can be no mention of the existence of a decision to resist.
A concrete case is the first decision by the court, the pre-combined with the lawsuit the plaintiff with the defendant that the finalization of the man’s matters may be defective, combined the plaintiff that the defendant is the man, the woman, the combined loss of the plaintiff the defendant, his personality violates the rights of, and thus the foundation of the marriage union is shaken where, after the rejection of the divorce, the parties, the parties stated they did not come together and filed by the admission of a decision in exchange for the witnesses will not have any effect on the result of Decision dated 02.06.2016, therefore, it was stated that after the decision was not in place after the marriage of the parties, the combined plaintiff the defendant, the plaintiff of the defendant the necessary attention she’s shown love and affection combined, according to a report from the Forensic Medicine Institution, a spiritual and does not enter into a sexual relationship with her, even though organic is not an illness, and are thus full of the imperfect man by avoiding their obligations, and the female one was by explaining that the previous decision stand is perfect.
Accordingly, it should be recognized that the decision on appeal, which the court calls resistance, is not a real decision on resistance in the sense of procedural law; it is a new provision based on a new justification that was discussed and not evaluated in the first decision, and is based on a new provision.
As such, the task of reviewing this new established provision on appeal belongs to the Special Department, not to the General Assembly of the Law.
Therefore, the file should be sent to the Special Department for the consideration of appeals against the new provision.
CONCLUSION: For the reasons shown above, the respondent has joined the 2nd part of the file for the examination of the plaintiff’s attorney’s appeals against the new provision. It was unanimously decided to SEND him to the LEGAL DEPARTMENT on 28.02.2018.
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