3. HD., Base. 2016/12231 Decision. 2018/2059 T. 5.3.2018
COURT : FAMILY COURT
As a result of the trial of the case of material and moral compensation between the parties by the court, upon appeal of the decision made to partially accept the case by the defendant’s deputy within the time limit; after the decision was made to accept the appeal petition, the papers in the file were dec and considered necessary:
SUPREME COURT DECISION
Prosecutor; in 2005, they met with the defendant, increasingly emotionally close to their partner that they had decided on their marriage, the defendant’s sister and brother-in-law introduced with the mother and the father was not made because it is not a traditional engagement ceremony, after a long time planning the wedding, wedding day, wedding party favors, invitations, and distributing it around and took dowry stuff defendant’s house is placed, but you didn’t come to the wedding and the defendant’s rights had been violated, arguing that his personal, he requested that for the time being, TL 1,000 financial compensation and TL 50,000 moral compensation be collected from the defendant, refund in the same way, provided that the items are not used, and refund if it is not possible to return them in the same way, be decided to move the dowry he spent on engagement and association to the defendant, road expenses, and material values such as the cost of the goods remaining in the defendant.
The defendant decried the case, arguing that there was no engagement between him and the plaintiff, that he paid for the items that the plaintiff brought to him, and that he rejected the case.
The court decided to accept the goods case, return the goods in kind, if it is impossible to return them in kind, partially accept the moral compensation case, receive £ 15,000 compensation from the defendant and give it to the plaintiff, reject the excess claims, the verdict was appealed by the defendant.
1- The case is related to the request for material and moral compensation. 4 Of the Law on the Establishment, Duties and Trial Procedures of Family Courts.in accordance with Article 2 of the Turkish Civil Code No. 4721.cases and cases arising from family law within the scope of the Law on the Enforcement and Application of the Turkish Civil Code No. 4722 with the help of the book (except for 3 parts) and works arising from family law are considered in the family court.
No. 15/6 04.06.1958 day as emphasized in the decision to merge the case law of the Supreme Court; a case on the basis of material facts by explaining these facts qualify legally, correctly interpret and apply applicable laws, it is the duty of the judge to seek out. In other words, it is up to the parties to tell the material event in a case, and the judge to make the legal qualification. (HMK. article 33). According to the aforementioned legal regulation, the legal qualification for the settlement of the dispute should be made according to the fact that the task of clarifying the case belongs to the court judge.
According to the court, the dispute is 121 of the TMK. it was decided on the merits of the case, stating that it was based on the reason for the breakdown of the engagement based on the article.
Engagement is a kind of promise made by the families of girls and boys who have reached the age of marriage and their close friends that they will marry in accordance with the customs and customs of the region.
The engagement is a family law contract, which is regulated in Article 118 of the Turkish Commercial Code and has no form requirement. In order for the engagement to be valid legally, it must be made in a certain ritual, the announcement(announcement) of the engagement must be made within the framework of the testimony of family members.
Although the plaintiff has requested financial and moral compensation in the petition of the lawsuit, claiming that his personal rights have been damaged due to the deconstruction of the engagement; There is no engagement ceremony in the traditional sense between the parties, this aspect is also accepted by the plaintiff.
In a concrete case, the parties have met informally at certain intervals, and in this case it is impossible to mention the engagement and a union that should be legally protected. Decembers Since it became clear from the scope of the file that the parties were not engaged, the relationship between the parties should be evaluated not according to the principles of family law, but according to the rules of the law of obligations, in particular the provisions on decriminalized action.
The rules of duty relate to public order, and the duty of the court in accordance with Article 114/1-c of the Criminal Code is in the terms of the case. The court must observe itself at all stages of the proceedings whether it is on duty or not.
In that case, in the case at hand, there is no claim for compensation based on the claim, which is caused by a tort, an assessment should be made within this framework and a decision should be made and the file should be sent to the Court of First Instance in charge.
In light of all these explanations, considering that the dispute did not fall within the duties of the Family Court, a decision on non-duty should be made, while the provision on the merits of the case in writing was not correct and required to be overturned.
2-According to the reason and form of the violation, the defendant’s appeals against the appeal did not need to be examined at this stage.
CONCLUSION: Without taking into account the principles described in the first paragraph above, the provision in writing is not fulfilled, so the provision is 428 of the HUMK.in accordance with Article 1086 of the Criminal Code No. 6100, as explained in the second paragraph, there is no place for the examination of the defendant’s appeals for the time being and the return of the advance appeal fee to the appellant upon request, with the temporary attribution of Article 3 of the Criminal Code No. 1086.nun 440.in accordance with the article, a unanimous decision was made on 05.03.2018, with the possibility of correcting the decision within a 15-day period from the notification of the decision, to be open.