23 May Decision Of The Supreme Court On The Opening of a Workplace of The Board Of Flat Owners
T.C SUPREME COURT 20.Legal Department Basis: 2019 / 4647 Decision: 2020 / 225 Decision Date: 20.01.2020
SUPREME COURT DECISION
Court :Magistrate’s Court
At the end of the hearing of the case between the parties, the decision of the court of Cassation was requested by the attorney of the plaintiff, after the decision was made to accept the appeal petition, which is understood to be in duration, the file was reviewed and considered necessary.:
K A R A R
In the filing of the lawsuit, … insured/ non-litigation located at the address … furniture textile construction. Stroll. Tic. Ltd. Şti’s warehouse used as “… furniture” real estate 09/01/2014-09/01/2015 between the client … also akishyeri package insurance policy is insured, 01/10/2014 on … outside blocks B block of the building on the ground floor of the electrical panel fire came out, Antalya Metropolitan Municipality Fire Fire report according to the floor of the building
a fire report stated that the electrical panel located in the floor corridor burned in flames, there was heavy smoke inside the building, residents of the building were stranded on balconies, the water coming out of the plumbing pipes that burned during the fire was found on the side of the company insured … Ltd. STI as a result of water leakage into the workplace of furniture in the work place if it is detected you saw some water damage to furniture, client appraisal commissioned by the company in the review due to fire damage to the insured in the workplace in accordance with the general terms about the cost of insurance coverage upon conclusion of the evaluation within the policy, the insured client by the company workplace 19.475,00 TL of the respondent 100% original defect is due to be paid at the rate, the damage and cause fire to be based a condominium building with the mind of the defendant is responsible for the cost of the damage because it is based on the respondent because 19.475,00 TL rucuen that the defendant would receive compensation from the side of the client company from the date of rediscount interest payment date which 20/01/2015 committed bank jointly and severally with the owners of the shares from the collection of his real estate immovable requested.
02/10/2015 retrieved 2015/597 E. – 2015/703 K. it was determined that the court was responsible for the absence of office, to look at the file, and the file was sent to the Supreme Court by the attorney of the plaintiff, who appealed against the decision of the absence of office. Supreme Court 17. Law department 01/10/2015 day and 2015/10951 E. – 2015/10082 K. it was decided to be broken by a numbered decision.
As a result of the court’s decision to overturn it, the case was decided to be dismissed due to lack of animosity, and the sentence was appealed by the acting plaintiff.
Temporary 3 of HMK No. 6100. Article 1. according to paragraph; provisional 2 of the law on the establishment, duties and powers of the District Court Courts, the courts of First Instance of judicial jurisdiction and the District Court Courts of 26/9/2004 and 5235. in accordance with the article, until the date of taking office, which will be announced in the Official Gazette, the application of the current provisions of law 1086 on appeal will continue. 2. according to paragraph; regional courthouse
427 to 454 before the amendment of Law No. 1086 of 26/9/2004 and Law No. 5236 until it is finalized. the implementation of the provisions of the article shall continue. Files related to these decisions cannot be sent to the district courts. 3. according to the paragraph; in cases where regional court courts are assigned duties in this law, the provisions of the law No. 1086, which are not contrary to this law, shall apply until the date of the commencement of these courts. In accordance with paragraph (2) of the same article; 427 to 454 before the amendment of Law No. 1086 of 26.09.2004 and Law No. 5236 until it is finalized. the implementation of the provisions of Article 437 of Humk No. 1086 shall continue. the duration of the appeal against the decisions of the Magistrates Court in the article is 8 days.
From the examination of the case file; in the short decision in which the court of First Instance ended the trial and in the reasoned decision, it was understood that the application period to the legal path and the authority were specified as the legal path of appeal within 2 weeks, the defendant’s deputy submitted a petition to the legal path in accordance with this specified period.
40 of the Constitution. in the second paragraph of the article, it is stated that the persons concerned in the transactions of the state must specify which legal means and authorities to apply to and their duration. 297 of the Code of Civil Procedure No. 6100. “C.” in accordance with the paragraph, it is also necessary to show the ways and duration of the law in the provision. The legislator aimed to effectively and healthily exercise the freedom to seek rights of individuals who do not know or hesitate to apply in the face of scattered legislation, ensuring that the parties have accurate information about the ways of law against transactions established by state bodies and to which authorities they will apply and the duration of the application.
The reasoned decision of the Constitutional Court in many decisions of the applicant specified in relying on reasonable that could be seen moving the court to the parties and the duration of the law of the obligation to show the right path, given the decision of the court of appeal, the period to be specified differently in the face of the denial of the petition specified in the law, by accepting the provisions of the legislation and assessments within the framework of decisions within the limits of predictability is that it will not be acceptable, concluding that the interpretation was achieved with an overly formal approach that made it impossible to exercise the applicants ‘right to appeal, and that the decision in this respect undermined the applicants’ right to access the court, the 36th amendment of the Constitution. he ruled that the German right to a fair trial had been violated. (Decision of the Constitutional Court of 2014/819 application number and dated 09.06.2016 (29757 numbered and published in the Official Gazette dated 29.06.2016)).
In a concrete case; in a short decision and a reasoned decision by the court of first instance, the length of the legal path is explained as 2 weeks from the date of notification of the decision. The reasoned decision was notified to the plaintiff’s attorney on 14/02/2019, and the plaintiff’s attorney applied to the legal path against the decision by depositing his fees and expenses within the 2-week period reported in the short decision and the reasoned decision on 28.02.2019. The right to a fair trial for the specified reason, taking into account that the right to access to justice is not impaired, was taken into account that the appeal request is in due course, and it was decided to examine the reasons for the appeal of the plaintiff.
Case
it relates to a claim for compensation arising from workplace insurance.
In order to resolve the dispute, mandatory litigation (follow-up) friendship must be explained first.
Compulsory litigation friendship is a litigation friendship that occurs when more than one person sues together or it is necessary to sue together against more than one person. Litigation friendship arising from material legal reasons may be called litigation friendship in terms of material, and litigation friendship arising from procedural law may be called compulsory litigation friendship in terms of form. A type of litigation friendship that occurs in cases clearly provided for by law, which is exclusively operational from the point of view of defendants, aimed at revealing the truth in all its dimensions and resolving the dispute between the parties in a healthier and more accurate way, is called a mandatory litigation friendship (Tanrıver, P. Civil Procedure Law, C 1, Ankara 2016, p. 542). In terms of form, it is necessary to determine whether cases (follow-up) arising from a disputed legal relationship that leads to a friendship of claims must be filed against more than one person, depending on whether there is a provision of the law in this regard. In cases where a case must be filed together against more than one person in accordance with the provisions of the special law, the case must be filed against all defendants. If a deficiency is found in the Friends of the case, the current defendant cannot conduct the case alone, and the current defendant cannot be convicted until the deficiency on the defendant’s side is eliminated. This deficiency is a lack of jurisdiction to pursue the case, and the case should be dismissed from the procedure (Pekcenitez, H. / Ozekes, M./ Akkan, M. He’s Not Afraid, H.T.: Civil Procedure Law C 1, Istanbul 2017, p. 706-707).
But from the examination of the information and documents in the file, it is clear that the main property subject to the lawsuit is floor-eased.
No. 634
Condominium Act 19. in the article, each floor owner is liable to anagayrimenkule and other independent departments for damage caused by its defect.
According to Article 20/1-b of the condominium law, “Anagayrimenkul’s insurance premiums and maintenance, protection and repair expenses of all common places, as well as other expenses such as the manager’s pension, as well as the operating expenses and expenses of common facilities are required to participate in the advance to be collected at the rate of its own land share.” Although the attorney of the plaintiff asked the defendants to jointly and severally collect the price he paid to the insured in the petition of the lawsuit in the proportion of his shares in the real estate, the responsibilities of the defendants that arise if the plaintiff proves his claim are in the proportion of the share of the land and there is no mandatory legal friendship between the defendants. Compulsory friendship of the case exists for the heirs of the deceased kat maliki …and if they are not included in the case, the case should be decided only from the point of view of this defendant and according to the result that will occur on the basis of the work from the point of view of other defendants, while the decision to reject the case for the absence of animosity was not considered correct.
However, if the defendant, who died during the trial after the case was filed, decided to reject the case out of the absence of animosity by giving the plaintiff a final decision to include his heirs in the case, the period given cannot be said to be in accordance with the procedure. In order for cases to be concluded in a short time and for justice to be manifested as soon as possible, some judicial proceedings that must be carried out by the parties or by the courts are tied to periods. As it is known, some of these periods are determined by the law personally, while some of them are left to the judge to determine according to the nature of the work, the status of the parties. Legal periods are final, with exceptions clearly stated. For this reason, 90 of the law on Civil Procedure No. 6100. as stated in the article, the periods appointed by the law cannot be reduced and reproduced by the judge. In contrast, 94 of the same law. according to the article, the periods determined by the judge are not as final as a rule. The judge will reduce and multiply his appointed time before it has yet expired, and after the time has passed, he can also go on the path of recognizing a new time at the request of the party. In this case, the second period given is final. However, the judge can also decide that the period he has set is final. If the exact period is determined, there is no doubt that the right acquired in the procedure will arise for the benefit of the opposite party. It is important to note immediately that a transaction that has not been performed within the exact period, whether it has been appointed by the law or the judge, cannot be performed after this period has passed. In this way, missing the exact time brings with it severe consequences, such as not being able to withstand this evidence or right, sometimes even leading to the loss of the case. Based on the idea that there is an injustice in the Justice that is delayed in this respect, the strict time rule set to prevent cases from being extended or extended for no reason should be used in accordance with the purpose of the law and should not be considered a means of dismissal of the case. First, the interim decision on the exact period should be written decisively and completely in a way that prevents any misunderstandings, and the work to be done should be stated one by one. In addition, the time given should be sufficient, the work ordered should be necessary and doable, and the judge should clearly explain the consequences of non-compliance with the time and warn the parties. In a concrete case, 11/04/2018, the plaintiff has been given a final period to include the defendant’s heirs in the case or to make a statement about it, and the plaintiff has submitted a request to the court to obtain a certificate of inheritance on 24/04/2018, the court has been authorized by an interim decision to obtain a certificate of decency. In this way, it cannot be accepted that the plaintiff has the purpose of extending the case, and at least the outcome of the transaction should be expected, while the decision in writing with the opposite thought required a violation.
Conclusion: for the reasons described above, the decision was made by a majority of votes on 20/01/2020 to overturn the provision with the acceptance of the appeals of the plaintiff’s attorney and the return of the appeal fee on request.
VOTING AGAINST
Although the decisions of the magistrate’s court can be appealed within 8 days, it is necessary to evaluate whether the appeal will be accepted within the period of the appeal filed by the defendant’s attorney 14 days after the notification of the decision, as the appeal period is stated as “two weeks” by the Local Court in the short decision.
In a judicial activity that begins with the opening of a case, there are certain actions that must be performed by the court and the parties in terms of reaching a decision, and each transaction must be performed within a certain period of time. These periods of time, which gain normative value with procedural provisions, are called periods. Thus, the conduct of procedural procedures is not temporarily left to the wishes and initiative of the parties or the court.
A dispute has been moved to the court and transferred to the public sphere and to a platform that concerns the interests of the community. For this reason, it is in the interest of society as well as the parties to end a case in a reasonable time.
In this case, the norms of the time, with the approval of the Civil Procedure Law in the intended purposes; provision of justice, the elimination of arbitrariness, the court being busy for a long time with the same job, in other words, the situation is unable to allocate enough time to work and other litigation prevention of Americans; the mandatory nature of the case in accordance with national and supranational norms are concluded within a reasonable time to ensure that a predictable pattern and zamansallik with the execution of the proceedings, in other words, are carried out in a fair manner to ensure that the trial can be summarized as.
A significant part of the periods are the periods set for the parties. The parties may or must make certain transactions within these periods. Actions that cannot be performed during this time cannot be performed again and will result against the party that missed the time. The periods set for the parties are divided into the periods specified in the law and the periods specified by the judge. The periods specified in the law are the periods stipulated by the law. Like response time, Appeal time. These periods are final, and whether a transaction is made within the legal period is observed by the court. As a rule, the periods determined by the judge are not final. (Kuru, Baki, Prof. Dr.; Arslan, Ramazan, Prof. Dr.; Yilmaz, Dragon, Prof. Dr.; Civil Procedure Law textbook, rewritten according to HMK No. 6100 22. Edition, Ankara 2011, p.749).
The judge has appointed his own term, 90/2 of the Code of Civil Procedure (HMK) 6100. according to the article, after listening to both sides, he can reduce and multiply based on justifiable reasons. The judge may also decide that his appointed time is final (HMK m.94/2, HUMK m.163).
As mentioned above, there are cases where the period can be determined by the judge, but the judge does not have the power to save over the periods set out in the law. The term prescribed by the law cannot be extended or shortened by the judge. The periods of Appeal are also the exact periods regulated by law and must be observed resen.
Temporary 3 of HMK No. 6100. (1). provision of the paragraph; “District Court Courts, Court of First Instance of judicial jurisdiction dated 26/9/2004 and numbered 5235 and District Court Courts
Provisional 2 of the law on establishment, duties and powers. in accordance with the article, until the date of taking office, which will be announced in the Official Gazette, the application of the current provisions of law 1086 on appeal will continue.””
No. 437 of 1086. 16 md of Law No. 5236, which reorganizes article. “the appeal period against the Magistrates” Court decisions is eight days. This period begins to process the declaration with a notification to each of the parties….””
For all these reasons, except in exceptional circumstances specified in the law, the judge may not increase or decrease the time in the law. According to the provisions of the law currently in force, the duration of the appeal against the decisions of the magistrate’s court is 8 days, but as a result of the provision, the court judge incorrectly stated that the decision can be appealed within 2 weeks, since the provision does not provide any rights to the appellant, we cannot participate in the opinion of the majority.
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