THE CASE OF NEGATIVE DECLARATORY (IIK. article 72)
“Criminal detection and investigation cases:
Article 72 – (Amended: 18/2/1965-538/43 art.)
“The debtor may file a misdemeanor claim to prove that the debtor is not present before or during the enforcement proceedings. The court, looking at the case of negative determination filed before the enforcement proceedings, may issue an injunction on the termination of the enforcement proceedings in accordance with the guarantee that will be shown not less than fifteen percent of the amount that you will receive upon request. It cannot be decided to stop the proceedings by way of an injunction in a case of misdemeanor filed after enforcement proceedings. However, the debtor may request the court not to provide the money in the execution register to the creditor by way of an injunction in exchange for the guarantee that he will show to cover the damages arising from the delay and not less than fifteen percent of the receivable. (Amended paragraph: 09/11/1988 – 3494/6 art.) If the case is concluded in favor of the creditor, the injunction is lifted. If the provision on this is finalized, the creditor receives the damages arising from late receipt of the receivable due to the injunction from the collateral shown. The damage suffered by the creditor is adjudicated and decided in the same case. This is probably the damage (Amended phrase: 6352 p.K.- 02.07.2012/m.15) it cannot be assigned lower than ”twenty percent”. (Amended paragraph: 09/11/1988 – 3494/6 art.) If the case is ruled in favor of the debtor, the follow-up stops immediately. Upon the finalization of the decree, the execution is partially or completely reinstated in accordance with the münderecat and also without the need for a ruling. If it becomes clear that the proceedings that force the debtor to open a case for detecting a vice are unfair and malicious, at his request, it is also decided to collect the damage suffered by the debtor due to the lawsuit from the creditor. The damage to be appreciated, the unfairness of which is understood to be the subject of follow-up you will receive (Amended phrase: 6352 p.K.- 02.07.2012/m.15) it cannot be lower than ”twenty percent”.”
I. generally:
• The creditor may have a benefit worth protecting in determining whether the debtor is a debtor before proceeding to the follow-up. If such a benefit is found, the debtor may file a lawsuit to determine that he is not the debtor. The debtor may file a vice detection lawsuit before or after the follow-up. However, the debtor can no longer file a vices detection case after paying the debt to the enforcement agency. After that, it happens that the borrower actually files a lawsuit to get the money he paid back, even if he does not owe it, which is an istirdat lawsuit.
• If the creditor has filed a lawsuit for the cancellation of the appeal in the follow-up and has won this case, it is no longer possible for the debtor to file a decency determination or a lawsuit between the same parties about the same receivable due to the exact provision.
* A Case of Detection of a Vice:
A negative determination lawsuit is a lawsuit that a borrower can file to determine that the borrower has not yet been found to be in debt before paying the debt. If the debtor wins this case, which he filed, the pursuit is canceled and he is released from paying the debt . The debtor may file a vices detection lawsuit before or after the follow-up and request that the debtor be determined that he is not the debtor. The debtor may file a vices detection lawsuit before a follow-up is made by the creditor, as well as open it after the follow-up. However, the consequences of both in terms of follow-up are different.
* Terms and Conditions of the Vile Detection Case:
The subject of our article is Article 72 of the Law on Enforcement and Bankruptcy. It is a “Vile Detection Case” organized in the article. Since this case is a detection case, HMK’s 106. It must be explained together with the provision of the Detection Case regulated in the Article. The articles of the law are as follows :
“Civil Procedure Code Determination case No. 6100”
ARTICLE 106
“ (1) Through the detection case, the court is requested to determine the existence or absence of a right or legal relationship, or whether a document is a fake.
(2) The applicant who has filed a detection case must have a current benefit that is legally worth protecting in opening this case, except for exceptional cases specified in the law.
(3) Material cases cannot constitute the subject of the determination case on their own.”
As can be understood from the text of the article, the determination of the existence or absence of a right or legal relationship, or the determination of whether a document is fake, can be requested from the court through a determination case.
