07 Jun Determination That You Have The Right To Borrow The Working Time That Takes Place Abroad Without The Requirement Of Being a Turkish Citizen
Supreme Court of the Republic of Turkey
21.Legal Department
Basis: 2016/4562
Decision: 2016/7793
Decision Date: 03.05.2016
REQUEST FOR CANCELLATION OF THE INSTITUTION’S TRANSACTION – DETERMINATION THAT IT HAS THE RIGHT TO BORROW THE WORKING TIME THAT OCCURS ABROAD WITHOUT THE REQUIREMENT OF BEING A TURKISH CITIZEN – VIOLATION OF THE PROVISION
Summary: The plaintiff, without the requirement of being a Turkish citizen, has requested that the determination of the right to borrow the working time abroad be decided on the cancellation of the institution transaction in the opposite direction. Concrete event; between the dates of the plaintiff’s insurance in Turkey, T.C it is understood that it is a work subject to a pension fund, that it is allowed to leave Turkish citizenship in order to become German citizenship by a decision of the Council of Ministers, that the plaintiff has been naturalized on the date of receipt of the certificate of naturalization, that he has been de facto working in Germany since the date. The dispute is understood to be caused by the request to borrow the work of the plaintiff, who was a pension fund associate due to his work in Turkey before 01.10.2008, when the law entered into force, and the decision to dismiss the case from the procedure should be decided due to the “non-permissible judicial path”, which is a requirement of the case in accordance with the article of the HMK, given that the settlement of the dispute falls within the scope of the administrative jurisdiction. In that case, appeals aimed at these aspects of the defendant’s institution must be accepted and the provision must be overturned.
(6100 P. K. m. 114) (5510 P. K. m. 101, late. m. 4) (2577 P. K. m. 2)
Case: the plaintiff, without the requirement to be a Turkish citizen, determined that he has the right to borrow the working time abroad, otherwise the institution requested to be decided to cancel the transaction.
The court has decided to accept the request, as stated in the declaration.
After it became clear that the appeal request was pending upon appeal by the defendant’s attorney, and after the report issued by the examination Judge and the papers in the file were read, the work was considered necessary and the following decision was determined.
The case relates to the determination that the plaintiff may be indebted under law 3201 in accordance with the provisions of the pension fund, taking into account the military service that the plaintiff has performed abroad while a Turkish citizen, subject to the Pension Fund, and the request to determine the cancellation of the transaction of the institution in the opposite direction.
The court has decided to accept the case in writing.
The dispute is collected at the point of determining the judicial path of Duty.
According to Article 114/1-b of HMK 6100, “the permissible path of judgment” is a condition of the case, and the court spontaneously Investigates at each stage of the case whether the terms of the case exist. The parties can also always argue for a lack of legal requirements. If the court finds a lack of a claim requirement, it decides to dismiss the case from the procedure.
Social Insurance and General Health Insurance No. 5510 entered into force on 01.10.2008 and the law is 101. in cases where there is no provision to the contrary in this law according to the article, disputes arising in relation to the application of the provisions of this law shall be seen in the labour courts.
Provisional 4 of law 5510 entitled “transitional provisions on Law 5434″. Article 4.according to the paragraph “if there is no provision to the contrary in this law; associate while this law enters into force as of the date of this act, the first paragraph of Article 4 (C) under this clause the provisions of the law before the effective date of this act 5434 those she has worked as the first paragraph of Article 4 of this law and subject to paragraph (C) subject to this law repealed and the widows and orphans of those as I started working again about 5434 including the provision are processed according to the provisions of the law.”
“…Disputes arising in relation to the application of the provisions of this law, contained in Article 101 of the law No. 5510, are considered in the employment courts.” part of the request for cancellation filing an appeal with the constitutional court, date 22.12.2011, and e: 2010/65 K: 2011/169 a denial of the request for revocation by the state the rationale for the decision and decided to Section 5754 before the enactment of the law, civil servants and other public officials who are working in his capacity as an associate with according to law retired retired 5434, it has been stated that the administrative judiciary will continue to be in charge in disputes related to them, as the procedures and procedures that the Social Security Institution will establish will continue to maintain the nature of administrative processing in terms of those who receive a widow’s and orphan’s pension, as well as civil servants and other public officials who will be eligible for retirement in the future. According to Article 153/last of the Constitution, the decisions of the Constitutional Court are published in the Official Gazette and bind the legislative, executive and judicial bodies, administrative authorities, real and legal persons. Weighted opinion in doctrine with decisions of the Constitutional Court; The reason for the decisions of the Constitutional Court is that they are binding.
On the other hand, the dispute of the court dated 4.9.2012 2012/64-83 before the enactment of the Law No. 5510 and decision based on the decision, in his capacity as an associate with according to law retired civil servants and other public officials who are working 5434 retired, widow’s and orphan’s pension and retirement of civil servants and other public employees are also eligible for receiving future ones who will be established by the Social Security Institution and duration of treatment in terms of “administrative processing” and “administrative action” that will continue to preserve the nature, therefore,, In accordance with Article 4/c of law 5510, those who start working as civil servants and other public officials after the entry into force of this law 5510 will be considered in accordance with Article 4 / c of law 5510., it has been concluded that the insured shall be considered subject to the provisions of this law and that the rules and principles stipulated by Law No. 5510, not law No. 5434, shall be applied to their rights.
In a concrete case, the plaintiff’s insurance in Turkey between 31.03.1987 and 31.03.1988.C it was understood that it was a work subject to a pension fund, that by a decision of the Council of Ministers dated 26.04.2000 it was allowed to leave Turkish citizenship in order to transfer to German citizenship, that the plaintiff had obtained the certificate of withdrawal from citizenship on 23.10.2000, that he was de facto working in Germany from 01.04.1996.
The dispute is understood to be caused by the request to borrow the work of the plaintiff, who was a subsidiary of the Pension Fund due to his work in Turkey before 01.10.2008, when Law No. 5510 entered into force, taking into account that the settlement of the dispute is within the scope of the administrative jurisdiction, according to Article 114/1-b of HMK 6100, the requirement of the case is “not permissible in the judicial way”, while the decision in writing, entering into the basis of the work, is contrary to the procedure and the law and is the reason for the violation.
In that case, appeals aimed at these aspects of the defendant’s institution must be accepted and the provision must be overturned.
Conclusion: a unanimous decision was made on 03.05.2016 to overturn the provision for the reasons described above.
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