T.C. THE DECISION OF THE SUPREME COURT
19.law office
Base: 2015/11083
Decision: 2016/4043
Date of Decision: 07.03.2016
RECEIVABLES CASE – THE COURT IN CHARGE OF BANK CREDIT CARD DISPUTES – THE COURT OF FIRST INSTANCE IS IN CHARGE AS OF THE DATE OF THE CASE – THE INTERPRETATION OF THE DUTY PROVISIONS IS ERRONEOUS AND THE ESTABLISHMENT OF THE PROVISION IS INCORRECT
ABSTRACT: Considering that the case date in the concrete case is 26.06.2012, the establishment of the provision required to be overturned by being mistaken in the interpretation of the duty provisions announced without regard to the fact that the court of first instance was in charge.
(4077 P. K. m. 10/A, 23) (6502 p. K. m. 3, 4, 73, 83, Late. m. 1) (5464 p. K. m. 43, 44) (6102 Pp. K. m. 4, 5) (6762 P. K. m. 4, 5) (6100 p. K. m. 2, 447, Late. m. 1) (5411 P. K. m. 142)
Case: At the end of the trial of the claim between the parties, the case was reviewed, the file was discussed and considered as necessary upon appeal by the dectiff and the defendant within the period of the decision made for the partial acceptance or rejection of the case for the reasons written in the application.
Decision: The deputy plaintiff said that the account was decoupled with a warning after the credit card issued by the contract signed between his client and the defendant on 30.03.2005 was used in violation of the provisions of the contract, and that the debt was not paid within the given time Istanbul 31. Executive Directorate of enforcement proceedings that the defendant was mentally ill ilamsiz 2011/5501 numbered file with the cancellation of the pursuit has been initiated with prompt execution of saying filed a complaint in the court of law when the defendant was removed in about guardianship 01.09.2011 that the date of the decision of the defendant until 2008 without any problem paying the debt, any payments that have not been made after this date, the defendant has the capacity to act by abusing his right of that one to whom TMC’s trying to get himself out of debt syrup, claiming that the executive civil court rejected the case, recognizing that the complaint case was unfair, it requested and sued to decide on the collection of the receivable of TL 38,950.60 together with the contractual interest that will be processed for now.
The defendant asked for the rejection of the case, claiming that he remained under guardianship for 8 years, did not have a driving license, and the desired receivable was legally destroyed.
The court adopted by the expert according to the report, the representative of the legal proceedings and transactions cannot ehliyetsiz full permission, even though that would be invalid, however, requested the extradition of what has been provided on the grounds that upon the adoption of the case can be partial, 14.630,42 TL varying the interest on the case along with advances in the collection from the date of the decision of the judge was appealed by the plaintiff’s attorney and the defendant.
The first legal regulation on credit cards in Turkey was made by adding Article 10 / A entitled “Credit Cards” to the law No. 4822 published in the Official Gazette dated 14.03.2003 and the Law No. 4077 on Consumer Protection No. 10/A. Thus, credit cards were included in the scope of TKHK No. 4077. 23 of the law No. 4077 entitled “Consumer Courts”. in its article, it is stipulated that disputes arising from this law, regardless of the adjective of the plaintiff, will be heard in consumer courts.
44 of the Bank Cards and Credit Cards Law No. 5464, which was published in the Official Gazette dated 01.03.2006 and entered into force. in its article, unlike the regulation in law No. 4077, a duty regulation has been applied that varies according to the adjective of the plaintiff.
44/1 of the BKKKK No. 5464. according to article 22 of the Law No. 4077 on Consumer Protection, if the cardholder is a consumer in disputes related to the application of this law: ”22. and 23. the provisions of the articles shall apply.” With the specified legal regulation, consumer courts have been charged in cases that will be filed against organizations (banks) that issue cards by card holders who have the title of consumers due to a credit card dispute by the specified legal regulation. Since there is a consensus on this issue, there has also been no discussion.
Discussion, 44/2 of the BKKKK No. 5464. it has appeared in relation to the regulation of duties in the article. Two different opinions constitute the subject of the discussions. According to one view, the contracts of the TCC numbered 6102 bank credit card 4/1-organized in item f of the banking transactions, due to credit card disputes commercial litigation because it is counted from the absolute card issuing institutions (banks) the card holder is in charge of the Commercial Court Court case against the criminal. According to another opinion; 44/2 of the BKKKK No. 5464. article 1086 refers to the provisions of the CMB on duties and authority and, in accordance with Article 447/2 of the HMK, “References to the CMB No. 1086 will be deemed to have been made to the articles of the Code of Civil Procedure that constitute the equivalent of these provisions”, HMK 2. in the article “the value of the assets without regard to the lawsuit and the amount relating to the court unless there is a provision to the contrary in the case of the court” where are connected to the provision of business and not in the procedural law of the case, laid out in compliance with the Turkish commercial code when issuing the card holder card filed against the institutions in charge of the consumer by having the title of court is the court of First Instance.
As a matter of fact, the General Assembly of the Supreme Court of Law in its decision dated 07.02.2007 and numbered 2007/19-50 E, 2007/50 K, made it clear that the commercial courts, not the general courts, are in charge of the court of first instance according to the case value in a concrete case in the cases to be filed by banks against card holders, and adopted the second opinion.
In determining the task, it is useful to evaluate the cases filed separately in terms of the HMK period No. 1086, which remained in force until 01.10.2011, and the HMK period No. 6100, which entered into force after that date.
To repeat, 44/2 of the BKKKK No. 5464. in its article, reference is made to the “Provisions of the Code No. 1086 on duties and authority”. the provisions of the Law No. 1086 on the post, which was in force until 01.10.2011, are included in article 1-8 of the aforementioned law. it is regulated in its articles. HUMK’s 8/1. according to the article, the court in charge of the case with regard to the case of assets are determined according to the value prescribed by law and as each year has increased compared to the revaluation rate to a value not exceeding in the case of the magistrates ‘ courts, were seen in the court case above a certain value. In addition, Article 5 of the TCC, which was in force at that time. according to the article, the relationship between the civil courts with the courts in the period since the first commercial division of Labor the division of labor unless there is objection, the judge can’t decide to divorce without citing duty. The fact that the judge continued the case despite the objection of the labor department and made a decision on the dispute on the merits was not considered a reason for the violation alone. (article 5 of the Turkish Commercial Code No. 6762).
As such, the provisional article 1 of HMK No. 6100. in accordance with the provision in the article “The provisions of this law on the judicial path and duty do not apply to cases filed on the date before the entry into force of the law”, in disputes before 01.10.2011, 44/2 of the BKKKK No. 5464. article 1-8 of the HUMKAH No. 1086. in accordance with the articles, it will be determined that the magistrates or courts of first instance are in charge according to the value of the case at the time of the case, but in accordance with Article 5 of the TCC No. 6762. the provision on the objection to the division of labor in the article will also be taken into account when determining the task. Starting from here, 01.10.2011 filed against the bank by the card holder before the date of the General Court (the value of the case, according to the civil courts civil or) being in charge of the criminal case to the court at the time of the trade was opened and the division of labor with regard to if no objection has been made, the case will be taken in the court of the criminal trade, but in time, the division of Labor was filed the objection of the file, if the general duty (civil or criminal law) to be sent to the court will be decided.
HMK No. 6100, which entered into force on 01.10.2011, has made the courts of first instance the main court in cases related to assets, with exceptions specified in the law, without distinction of quantity, on the grounds that assignment by case value creates many problems in practice, this distinction is not practical and does not fully meet the needs. Accordingly, in cases related to the assets that will be filed after 01.10.2011, HMK’s 2/1. regardless of the value of the case in accordance with the article, the court in charge is the court of first instance.
Article 5 of the Turkish Commercial Code No. 6102, which entered into force on 01.07.2012 after 01.10.2011, when the HMK No. 6100 entered into force. Item No. 6335 law amendment by the court with the relationship between the courts and other law-the Commercial Court division of Labor has been transformed from being the relationship of task relationship. Since the duty is related to public order, it must be res’en observed by the court at all stages of the case. However, the provisional article 10 added to the law No. 6102 by law No. 6335. it is stipulated in the article that the regulation of duties will not affect the cases filed before the entry into force of this law.
In accordance with these legal regulations, in cases filed by card issuing organizations (banks) against cardholders, in accordance with Article 44/2 of law No. 5464, the provisions of HUMK No. 1086 on duties and powers are referred to, HMK 447/2. in accordance with article 1-8 of both HUMK and the task, this reference will be deemed to have been made to the relevant provisions of HMK. in articles 1-4 of both the HMK and the. although the duties of the general courts are regulated in the articles and no regulation on the duty of the commercial courts is included in the articles, the duty of the commercial courts (Article 5 of the TCC No. 6762.) Article 5 of the Turkish Commercial Code No. 6102. 44/2 of the BRCC No. 5464, although it is regulated in its article. according to the article, there is no reference to the provisions of the TCC related to the task, in respect of cases before 01.10.2011, it is necessary to accept that the magistrate or first instance law is in charge of the value of the case, and in cases after this date, the courts of first instance are in charge regardless of the value of the case.
By the way, it is also necessary to mention the exceptions to this rule. Because it is 2/1 of HMK No. 6100. in the article; The phrase ”unless there is a contrary regulation in the laws” is included. On the contrary, the regulation is in accordance with Articles 142/1 of the Banking Law No. 5411 and Article 43 of the BRCC No. 5464. it is included in the article.
It is really the 43rd of the BKKKK numbered 5464. in its article; “Article 8 of this law. the provisions of the second paragraph, 9th, 12th, 24th, 25th, 26th and 44th articles of the Article do not apply to corporate credit cards issued to merchants.” the provision has been implemented. As can be seen, the legislator adopted a different regulation in terms of duty in disputes about credit cards issued to merchants and credit cards issued to consumers, in accordance with the definition of commercial litigation in Article 4/1-6 of the Turkish Commercial Code No. 6762 (4/1-f of the Turkish Commercial Code No. 6102) in terms of credit cards issued to merchants 5. in accordance with the article, the commercial courts of first instance have ruled in an exceptional way that they will be in charge.
It should be noted that the legislator approved Article 44/2 of the PKK Law No. 5464. 43 of the same law if it had intended that the cases covered by the article would also be heard in the commercial courts of first instance. he would not have placed this exception provision on corporate credit cards issued to merchants in his article.
A second exception is 142/1 of the Banking Code No. 5411. it has been introduced with the provision of the article. Accordingly, “Civil lawsuits to be filed by the bankruptcy and liquidation administrations of funds, fund banks and banks whose operating permits have been revoked shall be handled by the commercial court of first instance. If there is more than one commercial court of first instance in that place, these cases will be heard in the commercial court of first instance numbered (1) and (2).” According to the provision of the specified law, the case arising from a credit card dispute is 142/1 of the Banking Code No. 5411. if it is opened by an institution, organization or banks provided for in the article, the court in charge is the commercial court of first instance. If there is more than one commercial court of first instance in that place, commercial courts of first instance No. 1 and No. 2 are in charge. Since the duty under the provision of the mentioned law is related to public order and is of an imperative nature, it must be res’en observed by the court.
As a result, the court in charge of cases filed by banks against credit card holders in the period up to 01.10.2011 and excluding the above exceptions is the magistrate or first instance law in the capacity of general courts according to the case value, and in cases after this date, HMK No. 6100 2/1. it is the court of first instance, regardless of the value of the case in accordance with the article. As a matter of fact, this issue was clearly stated in the Decision of the General Assembly of the Supreme Court of Law, the date and number of which were written above.
Undoubtedly, the court charged with bank credit card disputes arising after the entry into force of the Consumer Protection Law No. 6502, published in the Official Gazette No. 28835 dated 28.11.2013 and entered into force 6 months after the date of publication, said law 3/1-k-l, 4/3, 73/1, 83/2 and provisional 1. it should be determined within the framework of the provisions contained in the articles.
The court, considering that the case date in the concrete case is 26.06.2012, was mistaken in the interpretation of the duty provisions announced without considering that the civil court of first instance is in charge, and the establishment of the provision in writing required overturning.
Conclusion: It was decided unanimously on 07.03.2016 to CANCEL the provision for the reasons described above and to return the advance fee on request.
