generally
Article 20 of the Code of Civil Procedure regulates that the court that makes a decision of dereliction of duty or incompetence will send the petition and the file of the case to the competent or competent court.
However, the court that makes the decision of dereliction of duty or lack of authority will not perform this operation ex officio, but will perform it at the request of the parties. The purpose of this article is to cover in detail the actions that must be taken to send the lawsuit petition and the file to the competent or competent court.
Decision of Non-Duty
The duties of the courts are regulated between Articles 1-4 of the Code of Civil Procedure, and in subparagraph 114/1-c of the same law, the duty of the court is considered among the conditions of the case. Dec. 114/1-c of the same law is the duty of the court. Dec.114/1-c of the same law.
Article 1 of the Code of Civil Procedure states; “The rules related to the duty are from the public order.” according to the provision, the court may issue a decision of dismissal at any stage of the case and even without a hearing. However, it may be asserted by the parties to the case that the court has no duty at any stage of the case until the trial is over (Art. 1-4).
Just as the court of first instance may take the issue of duty to re ‘sen nazar, after making the final decision on the merits of the case, when the parties to the case go to the supreme court against the final decision, the District Court of Justice,[1] the Supreme Court[2] and even the Dispute Court[3] take the issue of duty to re ‘sen nazar and examine whether the court of first instance is in charge before entering into the merits of the case.[4] For this purpose, there is no need for the parties to have taken the decision of the court of first instance to the higher court in terms of duty.
Both the objection to the duty put forward by the parties to the case and the court deciding that re ‘sen is not an official should include the rejection of the case due to non-duty in the decision of non-duty, inform which court the official court is and decide to send the file to the official court, otherwise it requires overturning. As a matter of fact, the incorrect representation of the competent court in the decision of non-duty also requires overturning.
Decision of Incompetence
The jurisdiction of the courts is regulated between Articles 5-19 of the Code of Civil Procedure, with the exception of Decrees in special Decrees, and the final authority is considered among the conditions of the case. Cases other than the final authority are regulated as the first objection.
Accordingly, in cases where there is no definitive authorization rule, the authorization objection, the objection that the dispute should be resolved by arbitration, and the division of labor objection are the first objections, and it is not possible to put forward the first objection other than this count (Art. 116).
In cases where there is a definite rule of jurisdiction, the court must investigate whether it is authorized by itself until the end of the case; the parties may also claim that the court is unauthorized at any time (HMK Art.19/1).
In cases where there is no definite authority rule, the objection to the authority must be put forward in the response petition.[5] The party who objects to authority shall notify the competent court; if there is more than one competent court, the court it has chosen. Otherwise, the objection of authority will not be taken into account[6](HMK Art.19/2). In this case, if the defendant does not file an objection to the authority within the time limit and in accordance with the procedure, the court in which the case is filed becomes competent (Art.19/4).
If the defendant party has notified more than one competent court in the authorization objection and has not clearly indicated to which of the courts to which the case has been notified, the authorization objection will not be taken into account.[7] In addition, even if there is another special competent court other than the courts indicated in the authority objection, it cannot be decided that that court is competent because the authority is not indicated in the objection.
Therefore, it is not possible for an objection to authority that is not a condition of the case -other than final authority – to be taken into consideration by the court, and in accordance with Article 19 of the Code of Civil Procedure, it is arranged that an objection to authority must be filed by the defendant within the time limit[8] and in accordance with the procedure, otherwise the unauthorized court will become authorized.
Like the defendant who has to notify the competent court in the objection to authority, the court that makes the decision of incompetence must also show the competent court in the decision of incompetence (HMK Art.19/3). Otherwise, the demonstration and/or incorrect demonstration of the competent court in the decision of inadmissibility requires a violation.
Upon a decision of dereliction of duty or lack of authority, the law has made no difference between Decrees of dereliction of duty and lack of authority in terms of authority, procedure, duration and consequences of applying to the competent court, and has regulated the issue with the same provision.
Accordingly, if a decision of dereliction of duty or incompetence is made, one of the parties must apply to the court that made the decision within two weeks from the date of finalization of the decision, if it was finalized by not applying for the legal remedy; if the decision to reject this application was filed by the legal remedy, and request that the case file be sent to the competent or competent court. Otherwise, it is decided by this court that the case will be considered unopened (HMK Art.20/1).
The official or authorized court to which the court issuing the decision of dereliction of duty or dereliction of duty sends the file must spontaneously send an invitation to the parties (HMK Art.20/2).
as a result
As a result, if one of the parties to the case has been finalized by not applying for a legal remedy against the decision of non-duty or incompetence, from the date of finalization of the decision, if the legal remedy has been applied, within 2 weeks from the date of notification of the decision to reject this application, the court of incompetence and incompetence must submit a request for the case file to be sent to the competent or competent court. Otherwise, it is decided that the case will be deemed unopened by an unauthorized and unauthorized court.[9]
[1] Istanbul BAM 17HD., 11.10.2018 T ., 2018/1898 E., 2018/1584 K.
[2] Court of Cassation 4. HD. 03/03/1966 T., 1965/11160 E., 19665126 K.; “The fact that the defendant did not appeal this decision from the point of view of duty due to the fact that the case was rejected on the merits does not prevent the provision from being overturned from the point of view of duty. In this respect, the judgment must be overturned in order for the lawsuit petition to be rejected in terms of duty.”
[3] The Court of Dispute HB., 24.09.2018 T ., 2018/411 E ., 2018/469 K.; “The rules of duty are related to public order and it is obligatory to be taken into consideration by the court spontaneously (re ‘sen). For this reason, since the full judicial cases to be filed must also be resolved at the administrative judicial place, it was decided to dismiss the case due to the absence of a legal requirement, and the judgment was established as follows.”
[4] Istanbul BAM 17. HD., 11.10.2018 T ., 2018/2001E., 2018/1586 K.; “1 of the HMK No. 6100. in article 114 of the same law, it is regulated that the duties of the courts will only be regulated by law, and the rules related to the duties are from public order. on the other hand, in the article, the duty of the court is counted among the Decrees of the case.115. in the article, it is stated that the court will investigate whether the conditions of the case exist or not at each stage of the case. Since all the explained legal reasons and especially the court’s duty will not constitute a duly acquired right on the part of the parties, the court should have decided to dismiss the case out of procedure due to the absence of a trial requirement related to the court’s duty, and since it is not correct that the merits of the case were decided by examining, a decision should be made to lift the court’s decision at first instance by accepting the plaintiff’s appeal application without examining the merits, the provision was established as follows.”
[5] Izmir BAM. 10. HD., 15.05.2017 T ., 2017/381 E ., 2017/623 K.
[6] Istanbul BAM 16. HD., 12.10.2018 T ., 2017/2517 E ., 2018/2125 K.
[7] Court of Cassation 17. HD., 17.04.2008 T., 2008/415 E., 2008/2012 K .; “HUMK.nun 23. according to the article, in order for the objection to the authority to be valid, the competent court must be clearly notified. As it can be seen, the defendant has shown more than one court competent in the authority objection. The mentioned objection is HUMK.nun 23. it is invalid because it is not found in accordance with the article. Therefore, while the court should have entered into the basis of the work with the rejection of the authority objection and decided in accordance with the result, it was not considered correct that the lawsuit petition was rejected from the point of view of authority.”
[8] Istanbul BAM. 3. HD., 17.01.2018 T ., 2017/1863 E., 2018/34 K.
[9] Court of Cassation 11. HD., 01.03.2010 T., 2018/11249 E ., 2010/2260 K.; “If there is more than one competent court for a case, the plaintiff has the right to choose to file a lawsuit in one of these courts. If the plaintiff does not file his case in any of these general and special authorized courts, but opens it in an unauthorized court, then the right to choose passes to the defendant. There is no legal regulation that prevents the defendant from showing more than one court competent when appealing for authority in this case. Because HUMK.in the 23rd /last sentence of the law, “the party claiming that the court is not salahiyettar is obliged to declare the salahiyettar to the court” has introduced the provision. It is not in accordance with the purpose of the legislator and the interests of the parties to interpret this provision as invalidating the objection to authority if there is more than one competent court provided for by law, the presence of several of these courts in the objection to authority will invalidate the objection to authority. The interpretation of legal transactions in the form in which they may be valid is one of the main principles (YIBK. 09.10.1946 issue:6/12, YHGK. 10.02.1960 E.4-6, K.188, 17.02.1960 E.4-10, K.192).”
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