23 Feb FIRST OF ALL, THE COURT SHOULD EXAMINE AND EVALUATE ALL THE REASONS FOR THE DISMISSAL THAT THE DEFENDANTS HAVE REPORTED, INCLUDING THE TRIAL STAGE, AND MAKE A DECISION BASED ON THE RESULT
T.C. THE DECISION OF THE SUPREME COURT
13.law office
Base: 2015/7350
Decision: 2015/31650
Date of Decision: 03.11.2015
CASE OF RECEIVABLES – THE COURT MUST FIRST EXAMINE AND EVALUATE ALL THE REASONS FOR THE DISMISSAL THAT THE DEFENDANTS HAVE REPORTED, INCLUDING THE TRIAL STAGE, AND MAKE A DECISION BASED ON THE RESULT – INCOMPLETE AND INCORRECT ASSESSMENT
ABSTRACT: While the court should first examine and evaluate all the reasons for the dismissal reported by the defendants, including the trial stage at the Supreme Court, and make a decision according to the result, it is contrary to the procedure and law that the judgment has been established with incomplete and incorrect assessments, and it requires overturning.
(6098 P. K. m. 505, 506, 512) (818 Pp. K. m. 389) (1136 P. K. m. 34, 174)
Case and Decision: At the end of the trial of the receivables case between the parties, defendant A. of the provision made for partial acceptance or rejection of the case for reasons written in the dec.. Sh.. a summons paper had been sent to the interested parties upon a hearing appeal by the lawyer. Defendant A, who appealed on a certain day.. A.. Sh.. and the acting lawyer S.. K.., the other defendant is Nobleman N.. Y.., K.. T.. with the deputy plaintiff lawyer M.. M.. Che..after the oral statements of the lawyers present were listened to, the hearing was started and left for another day for the decision. This time, the file was examined, it was determined that the appeal petition was in due course, and it was discussed and considered as necessary.
The plaintiff is one of the defendants.. Sh.., N.. Y.. and R.. Y..as the deputy of Bursa 1.2011/418 Of the Court of First Instance of Esas and Bursa 6.That the Court of First Instance follows the files numbered 2010/3821, that the decisions made are approved by the Court of Cassation, Bursa 9.the Enforcement Directorate initiated continuous follow-up through the files numbered 2012/6559 and 2012/7223, but was relieved of power of attorney at the time, A. of the defendants. Sh.., N.. Y.. and R.. Y..both for the case and for the execution power of attorney, the other defendant is K.. T..stating that he is only responsible for the execution power of attorney fee, as well as the follow-up costs for both execution files are made by him, Bursa 9 from the point of view of all defendants, provided that they reserve the rights to the excess. With a total of TL 11,991.00 executive power of attorney fee for both files of the Executive Directorate, K.. T.. as for the defendants other than 5.560,00 TL total litigation attorney fee and 5.660,00 TL due to the case, the counterparty requested that the collection of the attorney fee together with the legal interest be decided, and increased his request to 49.391,07 TL with a reclamation petition.
Defendants, the plaintiff’s lawyer Bursa 1. 2011/418 of the Court of First Instance and Bursa 6. In the files of the Court of First Instance numbered 2010/3821, one of the defendants is K.. T..although he is not a deputy of K.K., he is on the side of the other defendants without receiving written instructions.. T..’s rights lawsuit that is subject to enforcement proceedings, to understand this situation on their faith has been shaken to the plaintiff, also in the case of the occupation of the plaintiff as he did not attend the hearings, appeals did not attend the hearing at the Supreme Court, and rightly dismissed the attorney fee claim, arguing that a dismissal is requested.
The Court stated that “in particular, the plaintiff’s failure to attend the hearing in the Supreme Court was put forward as a justified reason for dismissal, but the proceedings in the Supreme Court required a separate fee, so this statement was not respected, the reason for dismissal was also not specified in the dismissal statements, the dismissal was secured in the execution files, the reprimands that occurred after the approval decisions given by the Supreme Court were not justified, the plaintiff’s lawyer was entitled to a full fee”, and the case was partially accepted, Defendant A of 6.719,85 TL.. Sh..from, defendant N of £6,719.85.. Y..of £2,479.60, defendant R.. Y..of £6,410.62, defendant K.. T..it was decided to refuse the request for collection and surplus together with the legal interest that will be processed from the date of the case, and the judgment was appealed by the defendants.
1- The lawyer’s debts as a proxy are covered by Article 505 of the Turkish Code of Obligations. (389 of the Mülga Code of Obligations) and its continuation are shown in articles, and the proxy is listed in Article 506 of the said Law. according to the article, he is obliged to perform the power of attorney against his client with loyalty and care. As a requirement of loyalty debt, the deputy is obliged to engage in actions that will benefit his client, to avoid behavior that will harm him.
34 of the Law on Advocacy on the ”debt of care”. “Lawyers are obliged to perform the duties they are assigned with with care, accuracy and honor befitting the sanctity of this duty and to act in a manner befitting the respect and trust required by the title of lawyer.” the provision is 506 of the Turkish Code of Obligations due to the fact that the profession of lawyer is a public service. (390 of the Law on Mutual Obligations.) is a much more comprehensive and special regulation than the attorney’s duty of care regulated in the article.
Accordingly, the lawyer is obliged to carry out and conclude the work he has taken on diligently and for the benefit of his client, as well as to scrupulously avoid attitudes and behaviors that will cause his client’s confidence to be shaken about him. Otherwise, if the client, who has no confidence in his lawyer, dismisses his lawyer, it is necessary to accept that the dismissal is justified. Indeed, if the lawyer has not shown the necessary care and attention in the performance of his duty, and has not faithfully performed the power of attorney, he is more than right to appoint his client’s attorney.
174 of the Law on Advocacy. in its article, “In case of dismissal of the lawyer, the entire fee is given. So much so that the fee does not have to be paid if the lawyer is dismissed for a defect or negligence.” there is a provision, according to which the client is not obliged to pay a power of attorney fee if it is proved that the dismissal is based on a justifiable reason. According to the well-established case law of our department, in case of justified dismissal, a power of attorney fee may be charged for work that has been completed and finalized only as of the date of dismissal. Because the proxy relationship is a whole and azil will handle all lawsuits and follow-ups between the parties, if it is accepted that azil is right, it is not possible for the plaintiff to claim a proxy fee for work that has not been completed and completed as of the date of decriminalization. In turn, if he is unfairly dismissed, the lawyer has the right to demand the full power of attorney for the work he undertakes, regardless of at what stage.
After these statements, the plaintiff’s lawyer, arguing that he was unfairly dismissed from the power of attorney, filed the case for collecting the power of attorney’s fee, while the defendants argued that Azlin was right. In this case, the issue that needs to be resolved first in the case is related to whether azlin is right. Although the defendants did not rely on any reason for the dismissal with the explanation “on the need I saw” in the dismissal notice, in their defense in this case, the plaintiff did not take the necessary care as a proxy, acted contrary to his obligation of loyalty, did not attend the hearings, K of the defendants.. T.. they also stated that they had initiated drug follow-up without instructions on their behalf, and that they had rightly dismissed the plaintiff for all these reasons.
The expert report based on the judgment stated that “the grounds for dismissal are not shown in the dismissal statement, the statement of dismissal stated in the abstract should be considered unfair dismissal”, and the court also established the provision on all the reasons for dismissal reported by the defendants in their defense without examination and evaluation. However, 512/1 of the Turkish Code of Obligations. (396/1 of the Code of Mutual Obligations.) in the article, it is stated that dismissal from power of attorney and resignation from power of attorney are always permissible, notification of the will of dismissal is not subject to any restrictions, both for reasons of dismissal and as of time. 2 Of the said article. if the dismissal and resignation occur at an inappropriate time, the provision on the obligation to compensate for the damage suffered by the counterparty for this reason is not limited and restricts the dismissal and resignation in any way, but, conversely, confirms the freedom to exercise this right and regulates the possible consequences of it only if it occurs at an inappropriate time. Again, 174 of the Law on Advocacy. nevertheless, different results have been attributed to dismissal or resignation from power of attorney, which vary depending on whether they are based on justifiable reasons. For all these reasons, in a concrete case, it should be recognized that the defendant is not bound by the reason of the dismissal announced in the notice of the will of the dismissed, may report new and other reasons for the dismissal in the case under consideration, and may base his defense that the dismissal is justified on these reasons. The adoption of the contrary will lead to a restriction of the right to defense, which is regulated and guaranteed in the Constitution. Essentially, this comment, in the style of the legal nature of the agency contract, especially on the relations of succession, which constitutes almost a prerequisite of the establishment of ‘mutual trust’ element, this element is a close interest in the law and judicial practice in teaching although it is not expressly regulated in the attorney and fiduciary obligations continue even after the end of the relationship will be adopted regarded as one of the ‘secret’s commitment to an appropriate result also reveals.(See Fig. HGK T. 11.10.2006, e.2006/13-610, K.decision No. 2006/639)
In that case, the court should examine and evaluate all the decriminalization reasons that the defendants put forward in this case, related to the issue of “whether the dismissal was justified”, which is the subject of priority dispute between the parties.
On the other hand, although it was stated by the court that “the plaintiff’s lawyer did not attend the hearing at the Supreme Court”, which is one of the reasons for the dismissal based on this case by the defendant, could not be a justifiable reason for the dismissal, there is no hit in this acceptance by the court. Because the lawyer is obliged to follow the work he undertakes to the end, and if the subject of legal assistance is a case, he is obliged to follow this case until it is finalized, including the stages of appeal and decision correction. In addition, the fact that a trial power of attorney fee is imposed for the benefit of the party who is justified as a result of the appeal request filed at the Supreme Court stage does not lead to the conclusion that this stage of the case, unlike the acceptance of the court, is a separate business. Again, the court mentioned that the receivable subject to legal aid is secured, but the fact that the receivable belonging to the client is secured is also not enough just to admit that the violation is unfair for this reason.
For all these reasons described, the court must first examine and evaluate all the grounds for dismissal that the defendants have reported, including the trial stage at the Supreme Court, and make a decision based on its result, while the fact that a written judgment has been established with incomplete and incorrect assessments is contrary to the procedure and law and requires overturning.
2- According to the reason for the violation, there was no need to examine the defendants’ other appeals at this stage.
Result: 1. Violation of the appealed provision for the benefit of the defendants for the reasons described in Paragraph, 2. according to the paragraph, there is no place for examining other appeals of the defendants, the trial attorney’s money of 1100.00 TL is taken from the plaintiff and paid to the defendant, 381.34 TL is taken in advance. the return of the appeal fee on request was decided unanimously on 03.11.2015.
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