T.C SUPREME COURT 20.Legal Department, Base : 2019/ 4647 Decision: 2020 / 225 Decision Date: 20.01.2020
THE DECISION OF THE SUPREME COURT
COURT : Magistrate’s Court
At the end of the hearing of the case between the parties, the Supreme Court’s examination of the established provision was requested by the dectiff’s deputy, and after the decision was made to accept the appeal petition, which is understood to be in the period, the file was examined and considered necessary:
In the lawsuit petition, the insured / non-insured … Furniture Textile Construction located at the address. Stroll. Tic. Ltd. “… Furniture” used as a warehouse belonging to Sti real estate was insured by his client between 09/01/2014 and 09/01/2015 with an akisyeri package insurance policy, on 01/10/2014 … The Outer Blocks of the building in block B are decked
according to the fire report of the Antalya Metropolitan Municipality fire department, a fire broke out from the electrical panel located on the floor of the building
it is noted that the electrical panel located in the floor corridor is on fire, there is thick smoke inside the building, residents of the building are trapped on the balconies, in the fire report, the water coming out of the plumbing pipes that burned during the fire is on the side of the clients company insured … Ltd. STI as a result of water leakage into the workplace of furniture in the work place if it is detected you saw some water damage to furniture, client appraisal commissioned by the company in the review due to fire damage to the insured in the workplace about the cost of insurance policy is insured in accordance with the general terms upon conclusion of the evaluation within the coverage
19.475,00 TL was paid to the workplace by the client company at the rate of 100% of the principal defect of the respondent parties, due to the fact that the damage is based on the fire and the cause of the fire is the building
since the floor is based on the fault of the owners of the defendants, the defendant parties are liable for the cost of damage, the amount of compensation due to 19.475,00 TL is immovable together with the bank discount interest processed by the client company of the defendant parties as of 20/01/2015, which is the payment date of the company
it was requested that the owners be jointly and severally charged at the rate of their shares in real estate.
The Court’s decision of 02/10/2015 dated 2015/597 E. – 2015/703 K. with its numbered decision, it was decided that the court’s duty was to determine that the Alanya First Instance Law Court was in charge of looking at the file, and the file was sent to the Supreme Court by appealing against the decision of non-duty by the plaintiff’s deputy. Supreme Court 17. The day of 01/10/2015 and the day of 2015/10951 of the Legal Department. – 2015/10082 K. it has been decided to be overturned by a numbered decision.
As a result of the trial conducted in accordance with the court’s decision to overturn the case due to the absence of animosity, it was decided to dismiss it, and the verdict was appealed by the deputy plaintiff.
provisional Article 3 of HMK No. 6100. article 1. according to the paragraph; The First Instance Courts of Judicial Jurisdiction dated 26/9/2004 and numbered 5235, as well as the District Courts of Judicial Administration of the regional courts
Article 2 of the Law on the Organization, its Duties and Powers. in accordance with Article 1086 of the Law on appeal, the implementation of the applicable provisions of the Law on appeal is continued until the date of taking office, which will be announced in the Official Gazette. 2. according to the paragraph; district courthouse
427 to 454 of the Law No. 1086 dated 26/9/2004 and before the amendment to the Law No. 5236 on decisions made before the date of the commencement of office of the courts, until they are finalized. the implementation of the provisions of the article shall be continued. Files on these decisions cannot be sent to the district court of appeals. 3. according to paragraph 1 of this Law; In cases where duties are assigned to district court courts, the provisions of Law No. 1086 that are not contrary to this Law are applied until the date of the commencement of the duties of these courts. In accordance with paragraph (2) of the same article,; 427 to 454 of the Law No. 1086 of 26.09.2004 of 26.09.2004 before the amendment to the Law No. 5236 on the decisions that were appealed against by the district court courts before the date of commencement of office, until they are finalized. the implementation of the provisions of the article will be continued and 437 of HUMK No. 1086. the period of appeal against the decisions of the magistrate’s court in the article is 8 days.
From the study of the case; the court of First Instance decision and the trial of a reasoned decision at the end of the path of the law in reference to the short time and noted Within 2 weeks of the appeal of authority as a way of law, the defendant counsel for the specified time, according to the petition presented by the law were understood to.
Article 40 of the Constitution. in the second paragraph of the article, it is stated that the state is obliged to specify which legal avenues and authorities the relevant persons will apply to and their duration in the transactions of the state. 297 of the Code of Civil Procedure No. 6100. article “d.” in accordance with the subparagraph, it is also a necessity to show the ways and duration of the law in the provision. The legislator has aimed to ensure that the parties have the correct information about the ways of law and which authorities to apply to against the transactions established by state bodies and the application period, and to ensure that individuals who do not know or hesitate which way to apply in the face of scattered legislation use their freedom of search for rights effectively and decisively.
The reasoned decision of the Constitutional Court in many decisions of the applicant specified in relying on reasonable that could be seen moving the court to the parties and the duration of the law of the obligation to show the right path, given the decision of the court of appeal, the period to be specified differently in the face of the denial of the petition specified in the law, by accepting the provisions of the legislation and assessments within the framework of decisions within the limits of predictability is that it will not be acceptable, reaching the conclusion that the comment made was obtained to such an extent and with an overly formalistic approach that made it impossible for the applicants to exercise their right to appeal, and in this respect, the decision undermined the applicants’ right to access to the court, Article 36 of the Constitution. he ruled that the right to a fair trial guaranteed in his article had been violated. (Decision of the Constitutional Court numbered 2014/819 and dated 09.06.2016 (published in the Official Gazette No. 29757 and dated 29.06.2016)).
In the concrete case; in the short decision and the reasoned decision by the court of first instance, the duration of the legal way was explained as 2 weeks from the date of notification of the decision. The reasoned decision was notified to the plaintiff’s deputy on 14/02/2019, and the plaintiff’s deputy filed a legal remedy against the decision on 28.02.2019, depositing his fees and expenses within the 2-week period reported in the short decision and reasoned decision. For the specified reason, considering that the right to a fair trial and the right to access to justice were not damaged, it was decided to examine the reasons for the plaintiff’s appeal by entering into the merits of the work with the acceptance that the appeal request is in the process.
the claim arising from workplace insurance is related to the claim for compensation.
In order to resolve the dispute, it is necessary to explain the mandatory case (follow-up) friendship first.
Compulsory litigation friendship is the case of more than one person together
in cases where it is mandatory to file a lawsuit or file a lawsuit against more than one person together, it is a case of friendship. A lawsuit friendship arising from material legal reasons can be called a lawsuit friendship in terms of material, and a lawsuit friendship arising from procedural legal reasons can be called a mandatory lawsuit friendship in terms of its form. The law, which is operational exclusively for the defendants, aims to reveal the truth in all its dimensions and to decisively resolve the dispute between the parties in a healthier and more accurate way
the type of litigation friendship that occurs in cases that it clearly stipulates is called compulsory litigation friendship (Tanriver, P. Civil Procedural Law, C 1, Ankara 2016, p. 542). In this regard, it is necessary to determine whether it is mandatory to file lawsuits (lawsuits) against more than one person arising from a disputed legal relationship that leads to litigation friendship, according to whether there is a provision of the law on this issue. In cases where, in accordance with the provisions of the special law, more than one person must be sued together, the case must be filed against all of the defendants. When a deficiency is found in the case friends, the current defendant cannot conduct the case alone and a judgment cannot be made about the current defendant until the deficiency on the defendant’s side is corrected. This deficiency is a lack of case follow-up authority and the case should be dismissed in due course (Pekcenitez, H. /Özekes, M./Akkan, M. He’s not afraid, H.T.: Civil Procedure Law C 1, Istanbul 2017, p. 706-707).
However, from the examination of the information and documents in the file;
it is understood that the floor is at an altitude of.
19 of the Condominium Law. in the article, each
it has been concluded that the floor owner is responsible for the damage caused to the main building and other independent departments by his fault.
Property law 20/1-b according to article, “the main building insurance, and maintenance of all public places, protection, and repair costs, and other expenses such as pension administrator with facilities for the expenses and the operating expenses of the common share for their land will be collected at a rate of advance
he is obliged to participate.” Although the plaintiff’s deputy asked the defendants to jointly and severally collect the price paid to the insured in the lawsuit petition at the rate of their shares in the real estate, the defendants’ liability that will arise if the plaintiff proves his claim is at the rate of the land share and there is no mandatory dec friendship between the dec in this aspect. Compulsory litigation friendship with the deceased
it is not considered correct to decide that the case should be dismissed only from the point of view of this defendant and decided according to the result that will be formed by entering into the merits of the work from the point of view of other defendants, if it is not included in the case from the point of view of the heirs of storey owner…, the case should be rejected from the absence of animosity.
However, if the defendant who died during the trial after the case was opened … was given a definite mehil to the plaintiff to include his heirs in the case and decided to dismiss the case from the absence of animosity, it cannot be said that the period given is in accordance with the procedure. The conclusion of cases in a short time depends on the periods of some judicial proceedings that must be conducted by the parties or the courts in order for justice to be manifested as soon as possible. As is known, some of these periods are determined by the law itself, while some of them are left to the judge to determine according to the nature of the work and the circumstances of the parties. The statutory periods are final with the expressly stated exceptions. For this reason, Article 90 of the Civil Procedure Code No. 6100. as stated in the article, the periods appointed by the law may not be reduced and multiplied by the judge. However, 94 of the same Law. according to the article, the periods determined by the judge, as a rule, are not final. The judge will reduce and multiply the period he has appointed before it has expired, and after the time has elapsed, he may also take the path of granting a new period of time at the request of the party. In this case, the second period given is final. However, the judge may also decide that the period he has set is final. If the exact period is determined, there is no doubt that a duly acquired right will arise for the benefit of the counterparty. It should be noted immediately that it is impossible to fulfill a transaction that has not been fulfilled within a certain period of time, whether it has been appointed by law or a judge, after this period has elapsed. Thus, missing the exact time brings with it serious consequences, such as the inability to withstand this evidence or the truth, sometimes even leads to the loss of the case. Based on the opinion that there is an injustice in the delayed justice in this respect, the strict time rule set to prevent cases from being unnecessarily prolonged or wanting to be extended should be used in accordance with the purpose of the law, and should not be considered a tool for dismissing a case. First of all, the interim decision on the exact period should be written clearly and decisively to prevent any kind of misunderstanding, and the work to be done should be specified one by one. In addition, the time given is sufficient, the work ordered should be necessary and feasible, as well as the judge should clearly explain the consequences of non-compliance with the time limit, warn the parties. In the concrete case, at the hearing dated 11/04/2018, the plaintiff was given a certain period of time to include the defendant’s heirs in the case or to make a statement about it
the plaintiff submitted a petition of claim to the court on 24/04/2018 to obtain a certificate of inheritance, and was authorized by the court by dec interim decision to obtain a certificate of inheritance. Thus, it cannot be accepted that the plaintiff has a purpose to extend the case, but at least the outcome of the transaction should be expected, while the decision to be made in writing with the opposite thought also required a reversal.
CONCLUSION: For the reasons described above, it was decided by a majority vote on 20/01/2020 that the decision would be OVERTURNED by accepting the appeals of the plaintiff’s deputy, and that the appeal fee would be refunded on request.
POST, VOTE AGAINST
Although decisions of the magistrate’s court can be appealed within 8 days, due to the fact that the appeal period is specified as “two weeks” in the short decision by the local court, it is necessary to evaluate whether the defendant’s attorney will accept the appeal petition filed 14 days after the notification of the decision in terms of the provisions of the current legislation and legal stability.
In the judicial activity that begins with the opening of a case, there are certain actions that must be taken by the court and the parties in terms of reaching a decision, and each action must be taken within a certain time december. These time intervals, which acquire a normative value by december provisions of the procedure, are called periods. Thus, it is not left to the wishes and initiative of the parties or the court to carry out procedural procedures temporally.
By moving a dispute to court, it is transferred to the public domain and to a platform that interests the public as well. For this reason, there is as much benefit to society as to the parties in terminating a case within a reasonable time.
In this case, the norms of the time, with the approval of the Civil Procedure Law in the intended purposes; provision of justice, the elimination of arbitrariness, the court being busy for a long time with the same job, in other words, the situation is unable to allocate enough time to work and other litigation prevention of Americans; the mandatory nature of the case in accordance with national and supranational norms are concluded within a reasonable time to ensure that a predictable pattern and zamansallik with the execution of the proceedings, in other words, are carried out in a fair manner to ensure that the trial can be summarized as.
A significant part of the periods are the periods established for the parties. The parties may or should take certain actions within these periods. Transactions that cannot be performed within this period cannot be performed again and will result in consequences against the party that missed the deadline. The periods established for the parties are divided into two: the periods specified in the law and the periods specified by the judge. The periods specified in the law are the periods stipulated by the law. Such as response time, appeal time. These periods are final and whether a transaction is made within the legal period is considered by the court personally. As for the periods determined by the judge, as a rule, they are not final. (Kuru, Baki, Prof. Dr.; Arslan, Ramadan, Prof. Dr.; Yılmaz, Ejder, Prof. Dr.; Civil Procedure Law Textbook, Rewritten According to HMK No. 6100 22. Edition, Ankara 2011, p.749).
The judge shall determine the period of his/her self-appointed term in accordance with Article 90/2 of the Civil Procedure Code No. 6100 (HMK). according to the article, after listening to both sides, based on justifiable reasons, it can reduce and multiply. The judge may also decide that the period he has appointed is final (HMK m.94/2, 4km.163).
As mentioned above, there are cases when the period can also be determined by the judge, but the Judge does not have the power to save on the periods established by law. A period prescribed by law cannot be extended or shortened by a judge by co-utterance. The periods for appeal are also the exact periods regulated by law and must be observed officially.
provisional Article 3 of HMK No. 6100. article (1). the provision of paragraph; “First Instance Courts of Judicial Jurisdiction of the District court dated 26/9/2004 and numbered 5235 and District Courts of Judicial Administration of the District courts
Article 2 of the Law on the Organization, its Duties and Powers. in accordance with Article 1086 of the Law on appeal, the implementation of the current provisions of the Law on appeal is continued until the date of taking office, which will be announced in the Official Gazette. it has the form “.
437 of HUMK No. 1086. article 16 of the Law No. 5236, which re-regulates its article. “ the appeal period against the decisions of the magistrate’s court is eight days. This period begins to operate with the notification of the divine to each of the parties in accordance with the procedure…. it has the form “.
For all these reasons, except in exceptional cases specified in the law, the judge may not increase or decrease the periods in the law. According to the provisions of the law currently in force, the period of appeal against decisions of the magistrate’s court is 8 days, but as a result of the ruling, the court judge incorrectly stated that the decision can be appealed within 2 weeks, since it will not provide the appellant with any rights, we cannot reach the opinion of the majority, as this will not provide the appellant with any rights.