27 Apr Case For Elimination Of Partnership
The case for elimination of partnership is a bilateral (actioduplex) case.
Both parties will benefit from the decision to be made in the case of elimination of the partnership.
Due to this feature, the parties in the case HUMK the procedural provisions to be applied as they are in the case of both the plaintiff and the defendant.of 561/570.the clauses are specifically specified with. Indeed, in the doctrine of Usul 561 to 568. 569 of these rules, which are collected in articles. it is suggested that they should be considered as special procedural rules to be applied to cases to be opened in accordance with the article.
In this respect, although the plaintiff wishes to have the partnership removed by sale alone, if the defendant requests the partnership to be removed by division as well, and if it is understood that the conditions exist, it is doubtful that the court will decide to have the partnership removed by division.
It is not possible to eliminate the partnership of a portion of the immovable. I Need It, M.K. in accordance with the provisions of nun and procedural provisions, only the whole of a good may be requested to be removed from the partnership.
he set the rule on the way to share items. According to this, if it is possible to share the same division, the judge will decide the sale by auction if it is not so.
This article of the law is of a superior nature. The last article 703 of the same law provides for the rule that sharing in the ownership of co-operation is done according to the provisions of shared ownership unless there is a provision to the contrary.,
In joint ownership, each stakeholder has the right to request the termination of the partnership status at any time in respect of his or her share. 698 of the Civil Code of rights. it is clearly stated in the article.
Also (E.) Of Civil Code 627. the limits of this right in Article 628. in the article, the procedure to be applied to ensure the termination of the partnership is shown. (E.) Of Civil Code 627. article 628 of the same law, unless one of the states limiting and preventing the removal of the partnership exists. it is necessary to decide on the elimination of the partnership by applying the procedure in the article.
(E.) Of Civil Code 627. cases that prevent the elimination of the partnership in the article,
1 – legal savings,
2-allocation of Real Estate for a permanent purpose,
3-it is the case that the installment is requested and made at a time that is not appropriate.
The legal savings from these are the agreements of the stakeholders with the obligation to continue the partnership for not more than 10 years. With this agreement, stakeholders are deemed to have stopped the right of all stakeholders or a particular stakeholder to opt out. This links the deal makers and those who acquire shares through the irs. in our case, there is no doubt in the existing construction contract between the parties that this agreement was made. Without a clear provision, the existence of such an agreement is unacceptable. Since the actual purpose of the present agreement is to carry out the construction, it is not possible to assume that there will be a continuing obligation of the partnership until the construction is done. Because the free will of the parties is united only in the form of a construction contract and the status to be applied in the event that the construction is not carried out, it is not united in the respect of the continuation of the partnership. It is not possible to interpret the construction contract in this way. the legal consequences of the construction contract are determined by law. It is against the provisions of the law to accept that these legal results, other than those determined by law, will result in a legal outcome determined by law.
If the real estate is allocated for a permanent purpose, it means that the stakeholders can benefit from the common property in accordance with the purpose for which it is allocated. For example, the wall between two immovable properties, the road opened for more than one immovable, Wells, fountains or facilities that allow separate buildings to be heated from one place are of this nature.
The construction contract of a stakeholder with another stakeholder for building on joint property cannot be considered as a permanent allocation of immovable property. Building is not an allotment nor does it offer a continuous nature. The floor easement to be established can not be considered as a permanent allocation of the real estate since the condominium has a certain ownership right in the provisions Department determined by the law after the legal results of the construction contract have been obtained. Moreover, according to the condominium law, the sale of apartments subject to easement and condominium is always possible.
This provision is intended to prevent the stakeholder from using this request in a way that would be harmful to the other stakeholder when it becomes the sale of the immovable property at the appropriate time. 2 Of The Civil Code. it consists of a special application of the substance. Therefore, the appropriate time is not acceptable as the time when the property can be sold at the highest price. From this high sale, stakeholders may be found to be harmed by the lack of time. However, stakeholders cannot be asked to wait for a period exceeding the usual. If the damaged stakeholder has ceased to suffer losses or the usual period has passed, the request for removal of the partnership must be accepted. As a result, the interests of both parties are measured at appropriate time and the Civil Code 4. it requires appointment using the discretion in the clause. There are even those who defend the opinion that certain time will be appointed by the sales officer during the sale, not by the judge.
If the stakeholders are alive in the cases of elimination of the partnership, it is imperative that their heirs, who will be identified with the certificate of succession to be presented if they are dead, be included in the case, thus becoming a party.
As a rule, the right to claim to share (to sue for division) is granted to the stakeholder in shared ownership and to the heir in cooperative ownership. No one who does not have the right to ask for or participate in sharing is granted the right to share. For Example 612 Of The Civil Code, 677 Of The Civil Code. although the articles of association give the possibility to make a contract with a third party on the assignment of the inheritance share, this does not give anyone the authority to participate in the share. Therefore, it is not possible for anyone who is not a stakeholder to file a division lawsuit.
The Law Of Medeni Is 588. according to the article, the creditor who is the basis of the share belonging to an heir or who has the execution certificate for foreclosure or inability to pay the debt against that heir may request the participation of the judge in the division to be kaim instead of the heir.
It also includes the right to ask for a share (lawsuit). Since the right to file a case for sharing belongs to the stakeholder or the heir and it cannot be expected to file a case resulting from the collection of the receivables from the heir who does not pay the debt, this right was granted to the judge with the said article of the law, the judge gave the creditor authority to file a lawsuit instead of the
648 of the Turkish Civil Code, since the legislator does not consider such a situation appropriate. an arrangement was made in the manner that the creditor could ask the magistrate to appoint a trustee to participate in the sharing. Accordingly, the creditor will ask the magistrate to appoint a trustee to participate in the sharing, when the trustee is appointed, the trustee will file a claim for the elimination of the trustee (division), and the case will be continued and concluded with the trustee’s peace. The case filed in accordance with the previous application should be resolved without going to the way of rejection and a decision should be made after that.
The person who is a creditor of the debtor who has a share in the property subject to the ownership of the association shall, on the basis of his authority from the execution court, file a lawsuit against all partners of the association, including the debtor; the right to sue here shall not be granted to the judge or any other person, only to thenun 121. in accordance with the provisions of the article, the creditor who has the authority to open the case for the elimination of the partnership is granted.(5)
The creditor of the associate partner may also file a lawsuit for the removal of the partnership for the immovable to which the debtor is a partner, based on the authorization document he will receive from the executive Audit Authority. 14.4.1943 day and 15/48 in accordance with the decision to merge the case law is required to obtain the certificate of authority from the executive Examination Authority. The bailiff has no right to issue such a certificate of authority. If a lawsuit is filed directly or on the basis of the document given by the Executive Officer without obtaining the document from the Audit Authority, the case will not be dismissed, the claimant must be given time to obtain the necessary document from the competent authority.
In the event that a lawsuit is filed by the creditor for the elimination of the partnership, all participating partners, including the debtor partner, must be included in the case.
For the benefit of stakeholders who represent themselves by proxy in cases of elimination of stakeholders, the attorney’s fee must be appreciated according to the provisions of the minimum wage tariff.
Cases for elimination of the partnership are two-sided cases with similar results for the parties. In these cases, the defendant has the same rights as the plaintiff. Therefore, the plaintiff’s request to share by sale does not prevent the defendants from wanting to share in the same way.
In cases of elimination of stakeholder, it is necessary to investigate whether it is possible to divide exactly according to the land area, Nature, number of shares and stakeholders and the nature of agricultural land and the zoning legislation in order to decide to divide the property by dividing it exactly by the court. If there is a significant loss of value of the real estate, it cannot be decided to share it by dividing it in the same way. Likewise, a portion of the real estate may not be shared unless the stakeholders give their consent.
If it is possible to divide and divide, equalization is provided by adding money (ivaz) to the missing piece in case the values of the divided pieces do not correspond to each other. Unless there is agreement between the stakeholders in the case, the judge cannot decide to divide and divide some immovable property by giving it to some stakeholders and the rest to other stakeholders.
In case of apportionment (taksim), the technical expert is asked whether it is possible to divide (taksim) according to the zoning law and regulation by taking a decision from the municipal council if it is within the boundaries of the immovable municipality or adjacent area according to this project by organizing the disclosure (taksim) project. If the stakeholders do not agree on who will be given where in the Disclosure Project, it is determined by drawing lots in the presence of the judge.
In the event of a negative response from the approval authority, a decision must be made to remove the stakeholder through sale.
No Comments