T.C. SUPREME
13.Legal Department

Basis: 2015/37944
Decision: 2015/34696
Decision Date: 30.11.2015

A CASE FOR THE CANCELLATION OF THE APPEAL – THE NEED TO DETERMINE WHETHER THE PARTIES ARE CREDITORS OF EACH OTHER BETWEEN THE PREVIOUS PERIOD AND THE CONTRACT PERIOD – A DETAILED EXPERT REPORT WILL BE OBTAINED, WHICH WILL BE BASED ON PARTY AND JUDICIAL SUPERVISION IN TERMS OF THE REQUESTS OF THE PARTIES

Abstract: between the period before the contract and the period before the contract, whether the parties are creditors of each other between the period before the contract and the period of the contract until the date of the resignation of the lawyer of the defendant in the combined lawsuit, whether the net consulting fee in TL is paid regularly and during the period before the contract and the period of the contract, which is agreed in the contract and must be paid in advance between 1-5 of each month, by examining in detail the demands of the parties on whether the move is justified in terms of judicial review and party so it will be essential to the result to be achieved based on detailed expert reports should be made when an appropriate decision; otherwise agreed as a result of missing the above review procedures and it is against the law. It requires breaking.

(1136 P. K. m. 171, 174) (1086 P. K. m. 440) (YHGK 23.03.1983 t. 1981/4-562 E. 1983/156 K.) (YHGK 03.07.1987 t. 1987/3-92 E. 1987/599)

Case and decision: at the end of the trial of the case for the cancellation of the appeal between the parties, a call paper was sent to the interested parties after the provision for the rejection of the case for reasons written in the ad was appealed at a hearing by the lawyer of the plaintiff and the Counter-Defendant. On a certain day, the plaintiff is noble M.. Y.. and acting attorney H.. T.. He.. with Defendant M-A.. Co. Ltd. acting attorney M.. T..after their arrival, the hearing was started and the oral statements of the lawyers present were heard, and the decision was left for another day. This time, it was determined that the appeal was in due course, and the file was examined, and the need was discussed and considered.

File the denial of the principal case in the study of the combined case on appeal of the defendant against the plaintiff for partial adoption of the court decision with the decision of where the decision is made to corruption 21.10.2015 our apartment blog, apartment of the decision and the decision on the reasoned motion signed by the members with the head of the department, this decision was written in pen in the decision, despite the confusion in the writing phase the system UYAP system due to impaired decision instead of the ref’s decision another decision to part with the title have nothing to do with another issue that is written in the announcement of the destruction, it was understood that the plaintiff requested the correction of the material error in this regard, and since the above-mentioned issue was caused by the Uyap system at the writing stage and this was found to be a material error, it was necessary to remove the decision of our apartment dated 21.10.2015 and numbered 2014/38981-2015/30868, which contains the name of the president and 10 members of our apartment, with the acceptance of the plaintiff’s request for the correction of the material error, and the decision of the court to disrupt the decision, such as the previously written and signed adlolan.

Plaintiff, in the original case; he is a lawyer, he began to provide legal services to the defendant since January 2004, after problems arose in the direction of payment of his fees on 09.10.2009, Legal Counsel signed a written contract entitled Principles of Attorney business follow-up and dated 01.08.2009, with a period of 1 year, according to this agreement, the defendant will serve as a proxy for litigation and enforcement with consulting services, and in exchange for monthly payment from 01.08.2009 2.000.00.TL net consulting fee will be paid, as well as due to litigation and enforcement follow-up, only the counterparty attorney fee will belong to him, the contract attorney fee will not be paid, Ankara 3. The Executive Directorate based on 86.717.00 2008/18658 numbered track from the file.On 25.05.2009 50.000.00 TL for the file that will receive the retainer.The TL’ s keeps on using the right to prison within the knowledge of the defendant, before signing the written agreement for the period 26.685.80.TL will take on that contract was signed after 2.000.00.Monthly consulting fee of TL verbally and by e-mail, despite the request, was not paid regularly since has resigned as 28.06.2010 right on that, right due to the resignation in Ankara 6. As for the 2008/654 basic file of the Commercial Court of First Instance 57.0608.08.TL Ankara 1. 2012/1159 Esas of the Executive Directorate, Ankara 1. As for file 2005/608 of the Commercial Court of First Instance 30.037.95.TL Ankara 24. 2012/6424 main number of the Executive Directorate, Istanbul 8. As for the 2009/389 basic file of the Commercial Court of First Instance 11.206.16.TL Ankara 30. He claimed that the Executive Directorate had initiated a follow-up in the executive files No. 2012/796, but that the defendant had unfairly objected to these follow-up, and requested that 40% of the executive denial compensation be decided upon with the cancellation of the actual objections to these executive files.

The combined lawsuit of the defendant for the plaintiff, the plaintiff sued the defendant a written contract that is dated 09.10.2009 combined with the terms from the previous section are reported to us by a lawyer in terms of the written contract of the parties from the contract period related to the prior period as ibralastig 20.000.00.TL+ VAT afterwards they had agreed to pay and they pay the monthly fee to be paid to the plaintiff under the terms of the written agreement of payment, the plaintiff sued the defendant according to the agreement signed for the combined “charge ” at the latest until the last day of that month the money that as a business owner you must make a deposit to accounts” verdict despite, enforcement proceedings in relation to litigation made an out-of-the plaintiff sued the defendant deposited in the account of 50.000.00 combined by Keçiören Municipality.From TL before the convention be informed that, accordingly, the creditor is the plaintiff defendant Attorney upon request and the money deposited in the combined externally resignation resignation resignation is unfair and unjust that the plaintiff’s attorney in accordance with the settlement attorney’s fee claim against a side from the task in hand more because of rightly objected to the enforcement proceedings, combined externally to the plaintiff the defendant’s attorney also charged and over 50.000.00 hired as unfair.The TL’ s the plaintiff sued the defendant for his execution, monitoring combined with committed interest in the collection has been contested by stating that the original trial against the denial of, opened by itself, and combined with the acceptance of the objection pleaded for the removal of the case to be decided.

The court rejected the original case; Ankara 11 with the partial acceptance of the case in terms of the combined case. in the Executive Directorate’s Executive File No. 2012/6889 50.000.00.TL principal receivables and 13.241.10.TL total traded interest 63.241.10.TL it was decided to cancel the appeal against the original claim and apply legal interest from the date of follow-up; the provision was appealed by the defendant of the case, which merged the plaintiff.

1-according to the Code of Obligations, resignation from the power of attorney is always possible, and this resignation is a disruptive and innovative process that ends the power of Attorney relationship in the future. But the resignation is not justified, and if the client has also suffered damage for this reason, the surrogate is responsible for this damage. In case of unfair resignation in the law of attorney, a heavier responsibility basis has been introduced in accordance with the regulations on the same issue in the law of obligations from the point of view of surrogacy. Indeed, in Article 174/1 of the law on lawyers “work, a lawyer who refuses to follow up without a justifiable reason cannot claim a fee.” a lawyer who resigns power of Attorney without a justifiable reason is held liable to the client without any damages, unlike the general regulations on the power of Attorney agreement in the Code of Obligations. According to the said regulation, a lawyer who unfairly quits his job and resigns from power of attorney cannot qualify for wages, and if there is no provision to the contrary, he must return the advance fees he receives and the advance expenses he does not use to the business owner.

Article 171/1 of the law on lawyers ” The Lawyer follows the work he receives in accordance with the provisions of the law and until the end, even if there is no written contract.”and 2 of the ” Attorney minimum wage tariff.” “…the attorney’s fee is the equivalent of the lawsuit, business and transactions fee until the final provision is obtained.” according to the provisions of the lawyer, if there is no contract to the contrary, he cannot claim his fee without following the work to the end and concluding it. (See fig. HGK in the same direction. 23.3.1983 4/562-156; HGK. 3.7.1987 3/92-599; 13. HD. 2005/15433 E. 2008/3694 K.; 13. HD.2008/6280 E. 2008/11580 K.) But as in the case of unfair dismissal, if the lawyer rightly resigns as a surrogate, since there is no opportunity to continue working, the lawyer can request that the surrogate fee, which is muaccel as of the date of the rightful resignation, be paid.

On the other hand, the relationship with the power of attorney is a whole, and just like the dismissal of the power of attorney, the resignation takes place in all cases and follow-ups between the parties. Because, along with dismissal and resignation, the “trust relationship”, which is one of the most important elements of the power of Attorney agreement, also ends.

After these statements, if the events subject to the lawsuit are considered; the main case, the attorney’s fee for enforcement proceedings the collection of the receivables and the opposite side is the objection to the cancellation of combined if that is the case, the executive or another part of his collection to get tracking done externally your attorney about the cancellation of the request for objection to enforcement proceedings for the collection of the deputies is related to and, since 2004, the lawyer for the plaintiff, coupled to the plaintiff of the defendant the lawsuit the lawsuit the defendant started to provide combined legal aid, signed a contract dated 09.10.2009 of the relationship ended with resignation written on 28.06.2012 and proxy, as of the date of the resignation of the plaintiff’s lawyer, it is understood that the defendant was pursuing his attorney and that none of the cases he was suing had been concluded. The proxy-client relationship between the parties, which started from the beginning of 2004, was connected to a written contract on 09.10.2009. According to this contract, the attorney of the plaintiff-01.08.2009 by the defendant in exchange for monthly consulting services from the date of 2.000.00.Paid a net wage of TL, VAT and withholding tax of the business owner to belong to the attorney attorney’s fee against statutory obligations in litigation will belong to the side out of it will not be any payments made to the lawyer, the monthly payment of the fixed fee to be paid in advance of each month between 1-5 business collection on behalf of the owner, it has been decided that it will be delivered to the business owner no later than the last day of the charged month after deductions have been made in accordance with the principles of the contract, and you will not be able to give any receivables related to the period before that. Ankara 3. In the follow-up File No. 2008/18658 of the Executive Directorate, the creditor defendant merged lawsuit plaintiff as a proxy on behalf of the company the plaintiff merged lawsuit defendant against the non-litigated debtor Keçiören mayor on 18.12.2008 557.272.27.TL 2 times 50.000.00 by the non-litigation debtor mayoralty, where enforcement was followed up on the receivables and the follow-up was completed.’er TL as the defendant was deposited in the account of the plaintiff in the merged case, and once on 25.05.2009 the plaintiff was the defendant in the merged case in the account of the lawyer 50.000.00.TL he is understood to have been deposited. The case of the defendant lawyer, the plaintiff coupled from the case by the mayor on the date 25.05.2009 50.000.00 deposited in the account.The TL’ s ‘ use the right that will take fees on account of imprisonment, and the money had been collected because the defendant was aware of the plaintiff to sue the business owner combined the Commercial Registry, the company that handled and even after knowing the situation of the parties in the previous period in terms of the contract signed on 09.10.2009 ibralastig, also each month, with the balance receivable from the previous period 1 -5% between 2.000.00 must be paid in advance.Net advisory fee of TL verbal and by e-mail in spite of all the warnings, regularly, non-payment due to his resignation as justified, the lawyer of the plaintiff to sue the defendant charged externally by 50.000.00 combined.Agreement dated 09.10.2009 before the TL had not been informed of this money was being held by the lawyer as unfair and later learned that much, and with the remaining balance that was paid monthly consulting fees from the period before the convention, they claimed and defended. Although in the expert report based on the court’s decision, the plaintiff must pay the lawyer monthly 2.000.00.TL dismissal of the original case on the grounds that the fee was paid, the resignation was unfair, and accordingly, in accordance with the law on lawyers and the minimum wage tariff of lawyers, the counter-side attorney’s fee could not be requested before the work was completed.; in terms of combined litigation, the plaintiff sued the defendant out of the case from the municipality combined externally by 50.000.00 charged on 25.05.2009.The TL’ s combined are not reported timely and in accordance with the agreement the lawsuit the plaintiff the defendant to prison, whether combined with the conditions of use of the right reasons, with partial acceptance of the case 50.000.00.13.241.00 principal receivables and TL.63.241.00 TL total interest committed.A decision is made on the withdrawal of the appeal in terms of TL, especially on the books of the Company pursuant to contract dated 09.10.2009 for a fixed monthly fee and without detailed review; receipts, account dumps and e-mail correspondence submitted to the file on whether the parties are creditors of each other until the resignation of 28.06.2010 between the period before the contract and the period before the contract are also fully examined, and the expert report, which is insufficient in this form, cannot be based on the provision. In that case, by the court, by the ingenuity of an expert expert or expert panel in the field of reconstruction, the non-litigation Mayor’s office on 25.05.2009 the plaintiff is credited to the account of the lawyer of the defendant in the case that merged the plaintiff 50.000.00.TL considering that the contract signed on 09.10.2009 and the parties have been released in terms of the previous period, whether the defendant has been notified of the collection made by the merged plaintiff company prior to the contract, in addition, the balance from the period before the contract is agreed in the contract with the receivable and must be paid in advance between 1-5 of each month 2.000.00.TL whether the net consulting fee is paid regularly and on time, whether the parties are creditors of each other between the period before the contract and the period of the contract until 28.06.2010, when the plaintiff’s lawyer resigned, by examining in detail the demands of the parties on whether the move is justified in terms of judicial review and party so it will be essential to an appropriate decision based on detailed expert reports should be made when the result to be achieved; missing as a result of the review above-written and procedures to be decided in the manner it is against the law. It requires breaking.

2-according to the reason for the violation, the plaintiff was not required at this stage to examine the other appeals of the defendant in the combined case.

Result: 1. for the reasons described in Paragraph 2, the provision appealed to the plaintiff for the benefit of the defendant in the United case should be broken. for the reason described in the bent, the plaintiff decided unanimously on 30.11.2015, to take the trial attorney’s money of TL 1100.00 from the defendant to pay the plaintiff to the defendant, to return the fees of TL 855.00 received in advance on request, to be clear within 15 days of the notification in accordance with Article 440/1 of the Humk.