General Assembly of the Supreme Court of law
2018/374 E.
2018/943 K.

Court :Court of First Instance

Ankara 6 at the end of the trial due to the “negative determination and moral compensation” case between the parties. 10.09.2013 day and 2011/189 given by the Court of First Instance for the acceptance of the case, 2013/374 K. the decision was appealed by the defendant’s attorney and the court of Cassation 19. 10.02.2014 days of the law office and 2013/19421 E., 2014/2667 K. by numbered decision:

“…The attorney of the plaintiff has requested and sued the defendant to decide whether to pay the defendant’s debt on 15.04.2011 by stating that the defendant has made a foreclosure process at his client’s House on 10.05.2011, even though the defendant has paid the file debt on 15.04.2011, and that his client is not indebted to the defendant since 15.04.2011

The defendant’s attorney argued that his client was paid a total of 4.000-TL, upon the request of the plaintiff to have his client sign the document stating that the total debt of the file was collected, his client signed it by writing 4.000-TL under this document, but the plaintiff wrote that the amount ”14.000-TL” was collected by adding to this document, whereas the file debt was not 14.000-TL,

According to the evidence collected by the court and the expert report; follow-up file debt is 13.582,13-TL, 29% fixed interest in case of application of interest rate changed as of 15.04.2011 15.083, 78-TL, the plaintiff party submitted and the defendant party accepted the signature of the document dated 15.04.2011 there is no evidence that falsification has been done, as of the date of, in spite of the payment, execution proceedings are continued and foreclosures are made at the plaintiff’s house because the defendant is malicious and despite the payment of the file debt, the House of the plaintiff has been foreclosed on on 10.05.2011, the collection of household goods is continued from the third party, despite the injunction given in accordance with Article 72/3 of; it was decided that the plaintiff was not owed as of 15.04.2011 in the execution follow-up file of the case, that the malice compensation of TL 4,400-calculated at 40% of the receivables made in the case should be taken from the defendant and given to the plaintiff, and that the moral compensation of TL 5,000-should be taken from the defendant and given to the plaintiff,

1-the articles in the dossier on the evidence based on the decision and the necessary reasons, the evaluation of the evidence did not find a fault in the defendant’s attorney’s rejection of other appeals outside the scope of the following paragraph was required.

2-a)it was not considered right for the court to rule on non-pecuniary compensation, as the reasons for the plaintiff’s loss were not sufficient for the acceptance of the claim for non-pecuniary compensation.

b) if the execution proceeding that forces the plaintiff to sue the debtor is unfair and malicious, in accordance with Article 72/5 of the OIC, the plaintiff shall be entitled to unfair and malicious follow-up compensation upon request for the benefit of the debtor. When this matter is considered, the right condition at the execution follow-up date is taken into account for determining the compensation. It is not right that this direction has not been observed by the court…”on the grounds of unanimity for the reason described in sub-paragraph (a), the reason described in sub-paragraph(B) was overturned by a majority of votes and the court was rebuffed in the previous decision at the end of the retrial.

RESOLUTION OF THE GENERAL ASSEMBLY OF THE LAW

The law was reviewed by the General Assembly after it was understood that the decision to resist had been appealed during its time and the documents in the file were read.:

The case is related to claims for moral damages due to negative detection and wrongful lien.

The attorney of the plaintiff, during the execution proceedings against his client to be paid the file debt externally on 15.04.2011 and the defendant issued a signed document regarding the payment, but the defendant continued the execution proceedings in bad faith and made a lien in the plaintiff’s House and had some household goods kept, the defendant, who collected all the ferisle will receive this lien process, with the determination that the plaintiff is not indebted due to execution follow-up,he demanded and sued the defendant to decide to collect 40% compensation and try 5.000.00 non-pecuniary compensation due to unfair lien.

The defendant’s attorney stated that the plaintiff paid his client a total of 4.000. 00 TL after the execution follow-up, and then wanted to have his client sign the document containing the statement that all the file debt was paid, and that his client who realized this situation had received up to that day signed the 4.000. 00 TL under the document in his own handwriting,but that the amount “14.000. 00 TL”, he demanded that the case be dismissed.
The Local Court has no evidence that the document presented by the plaintiff and the defendant has accepted his signature on 15.04.2011 has been falsified, the debt of the follow-up file has been paid as of the date of the issuance of the document, the execution follow-up proceedings have been continued despite the payment and the case has been opened it was decided to accept the case on the grounds that the conditions for compensation were formed in the article, that the plaintiff’s reputation in social and business environment was damaged due to the sequestration of household goods by making a lien in the House of the plaintiff despite the payment of the file debt, and that the plaintiff was not indebted in the execution follow-up file as of 15.04.2011, and that the

The decision was appealed by the defendant’s attorney and the special office was overturned on the grounds set out in the title section above.

In this case, the reason forcing the plaintiff to file a suit against deborç is that the suit is continued and the plaintiff’s home is foreclosed, whereas in the concrete case the file debt is paid and the prosecution continues to foreclose on the home of the debtor and a number of household goods are confiscated, whereas in the case where the claim for moral compensation is it was resisted in the first provision on the grounds that the conditions of compensation in the article also occurred.
The decision to resist has been appealed by the defendant’s attorney.

Dispute arising before the General Assembly of law through resistance: 72/5 of the enforcement and Bankruptcy Code with the terms of non-pecuniary compensation due to unfair lien in favor of the plaintiff in the concrete case. it is collected at the points of whether the compensation conditions in the article are formed or not.

It is useful to evaluate the issues of conflict separately.

I-in respect of Appeals by the defendant’s attorney for non-pecuniary compensation;

It should be stated immediately that the Turkish Civil Code No. 4721 (TMK) has accepted real and legal persons as persons. The legal order, which recognises the ability of individuals to be entitled and be in debt, also offered them the opportunity to protect their personality. The value protected to the extent of the physical presence of the person based on personal values (life, body, such as physical and mental health) and its place in the community and on the effectiveness of the external values (honor, dignity, integrity, dignity, economic, freedom of movement, name, honour, private life and secret area), briefly to be the person therefore the person’s integral all the values in a format that is not included (Day and HGK of 22.01.2016 2014/4-213 E., 2016/70 K.).

In this context, the right of personality is the absolute right of the person, which includes the concept of the person, over the material and spiritual personal values that the person has due to being a person, and which the right and the ability to act and the legal order find worthy of protection.

The fundamental rights and freedoms enshrined in the Constitution are the right to personality. It is a constitutional obligation for both state bodies and persons to protect and respect the right of personality, which is considered one of the fundamental rights. The rights of persons are protected under constitutional protection as well as by the provisions of the Turkish Penal Code.

In the field of private law, the basic regulation for the protection of the rights of persons is the 23rd and 24th of the TMC. it is decreed in its articles. Another regulation on the subject is the article 58 of the Turkish Code of Obligations (TBK) No. 6098. (Article 49 of the Code of Obligations (BK) No. 818.) article, the person whose right to personality is attacked the claim for moral compensation has been arranged.

The case for moral compensation, which is one of the cases that can be filed for the protection of personality rights, according to the generally accepted opinion, is a case against the decrease in the personality values of the person who is harmed against his will or for the relief of the pain, suffering and suffering of the person whose right to personality is

As a matter of fact, 49/1 of BK No. 818 in mülga. article 58/1 of TBK No. 6098, which contains a parallel arrangement. article; ” the person damaged by the damage of the right, suffered in return for the moral damages under the name of moral compensation may ask to be paid a sum of money.”includes provision.

As it can be seen, the basis of the claim for moral compensation lies in unfair action and the person who is harmed due to the damage of the right of personality is the person who is hurt by the right of Person Act 58. according to the article, he may seek moral compensation for the damage he has suffered.

In the meantime, the foreclosure process done in an unfair manner is an unfair action and therefore the person whose right to personality is damaged may request moral compensation.

As for whether the wrongful seizure was found in the concrete case; execution proceedings against debtor (plaintiff) were initiated by the creditor (defendant) … on 28.03.2007 through foreclosure on foreign exchange notes based on bills of TL 6.000. 00 due date of 30.01.2007,payment order was notified on 25.02.2011, debtor objected to debt and foreign exchange notes with his petition dated 01.03.2011, the follow-up is related to the foreign exchange note and, upon this, it is understood that the creditor’s attorney requested a lien, the first time on 06.05.2011 the second time on 10.05.2011 the debtor’s home address was confiscated, the declaration that the debtor has paid his debt was not accepted by the creditor’s Attorney, some household items were kept and put up for sale, the sale was

However, in accordance with the document dated 15.04.2011 available in the file, all of the follow-up file debt was paid by the plaintiff to the defendant externally before the foreclosure date. There is also no dispute between the private chamber and the local court as to whether the signature on the said document belongs to the defendant’s creditor. In this case, the foreclosure and preservation process that the defendant, who has collected all of his receivables externally, has done in the House of the debtor by continuing the execution proceedings by not reporting it to the execution file is an unfair foreclosure. Due to the wrongful lien, the reputation of the plaintiff has been shaken and personality rights have been attacked.

In that case, the decision to resist the defendant, who is at fault for the wrongful foreclosure and retention process, should be held liable for the moral damage suffered by the plaintiff.

However, since no investigation has been conducted by the special Office regarding the amount of compensation, the file must be sent to the special Office for the examination of the appeals appeals related to this direction.

II-72/5 of the act of execution and bankruptcy of the defendant’s attorney. as for appeals for compensation, which are ruled in accordance with the clause;
As is known, the case against a person (debtor) who is likely to be subject to execution proceedings due to a non-existent debt or Invalid legal relationship, or who is subject to execution proceedings for proof that he is not actually indebted, is called as negative determination (22.01.2016 day and 2014/19-674 E., 2016/76 K.; 23.10.2015 days and 2014/19-118 E., 2015/2357 K.).
The mainstay of the negative detection case is the 72nd amendment of the ICJ in 2004. it constitutes the substance.

The 72nd, entitled “negative detection and rectification cases” of the iik. substance;

“Debtor, before or during the follow-up of execution to prove that there is no debtor may sue for negative determination.

The court looking at the negative determination case filed before the execution follow-up may issue an injunction against the suspension of the execution follow-up against the guarantee to be shown, not less than fifteen percent of the amount you will receive upon request.

In the case of negative determination filed after the execution proceedings, it cannot be decided to stop the follow-up by means of injunction. However, the debtor may ask the court not to give the money in the execution teller to the creditor through an injunction in exchange for the guarantee to be shown not to be less than fifteen percent of the claim and to cover the damages arising from the delay.

If the case is concluded in favor of the creditor, the injunction will be lifted. In the event that the provision is finalized, the creditor shall take the losses arising from the late receipt Due to the injunction from the collateral shown. The damage suffered by the creditor is decided by being appreciated in the same case. In any case, this loss cannot be determined less than twenty percent.

If the case is ruled in favor of the debtor, the immediate follow-up will stop. Upon the finalization of the decree, the execution shall be returned to its former state in part or in whole, in accordance with the decree and without the need for a decision. If it is understood that the follow-up which forces the debtor to file a negative determination lawsuit is unfair and malicious, it is decided to collect the damages suffered by the debtor due to the cause of the lawsuit from the creditor upon his request. The damage to be appreciated cannot be less than twenty percent of what you will receive from the subject of follow-up, whose wrongdoing is understood.

If the debtor has not taken an injunction in the case of negative determination and the debt has been paid, the case shall continue as an investment case.
The person who has not objected to the pursuit or who is obliged to pay the money he is not owed in full because of his objection has been removed may request the withdrawal of the money by applying to the court at the general provisions office within one year from the date of payment.

Negative detection and restitution cases can be filed in the court of the place where the execution office is located, or they can be filed in the court of the settlement of the defendant. The plaintiff is obliged to prove that only the money should be given in the restitution case.”includes regulation.

In the last sentence of the fifth paragraph of the article, the compensation rate which was forty percent before 02.07.2012 day and 6352 No. 15 of the law.the article was amended to twenty percent.

As can be understood from this regulation, the purpose in the case of negative identification is to determine that a legal relationship or a right does not really exist.

It can be suggested before the execution proceedings that the legal relationship based on does not really exist, or it can be suggested after the execution proceedings. In order for the debtor to file a negative determination lawsuit before or after execution proceedings, it is necessary to have legal benefit in determining that he is not a debtor. The debtor may have a benefit worth protecting in determining that the debtor is not indebted without waiting for the creditor to take action. If such benefit is found, the debtor may sue to determine that he is not owed before the execution proceedings.
In addition, since execution follow-up is not qualified to determine the material relationship between the parties, it is possible for the debtor to ask the court to determine that he is not a debtor after the creditor attempts to follow-up, or even after the follow-up is finalised.

It is useful to mention the consequences of the acceptance of the negative determination case for the settlement of the dispute.

If the court finds that the case is justified, it decides to accept the case, that is, to determine that the plaintiff is not indebted. Upon finalization of this decision, it is determined in terms of material law that the creditor claims or the receivables subject to follow-up do not exist and the dispute shall be settled with certainty. In case the case is concluded (accepted ) in favor of the debtor, the outcome of the execution proceeding and the outcome of the ICJ is 72/5. the issue of compensation, which is regulated in the article and which should be ruled in favor of the debtor, comes to the agenda.

With the provision of the provision (without having to be finalized) the execution follow-up stops immediately, with the finalization of the execution follow-up is cancelled and the claimant is free from paying the debt.

Iik’s 72/5. in the article, if the execution proceeding which forces the debtor to file a negative determination lawsuit is done in unfair and bad faith, it is stipulated that the debtor will decide to collect the damages suffered by the debtor due to the lawsuit, not to be less than twenty percent of the receivables subject to follow-up upon request.

However, there are certain conditions under which compensation can be decided in favor of the debtor who wins the negative determination case. First, because the creditor must have forced the debtor to file a negative determination suit with the execution follow-up he has made, an execution follow-up against the debtor must be carried out. In this respect, if there is no follow-up of an execution against the debtor, there will be no compensation. In addition, the creditor must be unjustified and malicious in the execution follow-up which forces the debtor to sue in addition to the debtor to make a claim during the case of negative determination. It is important to note that not only is it not sufficient for the creditor to be unjustified in the execution proceedings, but it is also obligatory that the follow-up was done in bad faith in accordance with the clear regulation in the article of law.
The unfairness of the follow-up shall be in question if the creditor attempts to follow-up the execution even though he has no or no claim in the amount requested. The bad faith in the text of the article occurs when the creditor attempts to pursue the debtor in order to harm him, even though he knows that he is wrong.

All these comments when taken in context of the concrete event, the creditor (the Defendant) dated 28.03.2007 by maturity for negotiable instruments based on bonds 30.01.2007 through the attachment on the debtor (the plaintiff) against the enforcement proceedings initiated after a long time because the research address the order of payment by the borrower on 25.02.2011 dated 15.04.2011 document has been communicated to the debtor and the debt has been paid. As it can be seen, the defendant is actually a creditor and his claim has been paid after execution proceedings. Therefore, it is not to be said that the execution proceedings initiated by the creditor due to an unpaid debt at maturity are unfair and malicious. However, due to the fact that the creditor continued the execution follow-up operations after the payment of the debt, and the case of negative determination was filed thereafter, the question of whether compensation could be decided in the event that “wrongdoing and ill-intentionality” occurred after the execution follow-up was debated and the ICI’s 72/5. article 72/5 of the ICJ in favor of the plaintiff in the concrete case, where the “follow-up” that forces the debtor to file a negative determination lawsuit seeks to be unfair and malicious, where[u] “follow-up” is called and the case of right in the date of follow-up is based on[/u]. it was agreed by the majority of the board that the conditions for compensation in the article did not occur.

During the negotiations at the General Assembly of the law, iik’s 72/5. the “follow-up” which forces the debtor to file a negative determination suit is seeking to be unfair and malicious, the execution follow-up is a process, therefore it is not right to determine the fact of wrongdoing and maliciousness only at the beginning of the execution follow-up, the creditor may fall into an unfair and abusive situation after the execution follow-up and, noting that the situation in which the debtor tries to collect from the bailiff as well as the debtor has made a foreclosure process in his house, which forces the debtor to file a negative determination lawsuit, is also unfair, iik’s 72/5. although it has been suggested that the Local Court decision should be upheld in respect of compensation ruled in favor of the debtor in accordance with the article, this opinion has not been accepted for the reasons described above.

In this case, the decision to break the special circle adopted by the General Assembly of Law 2. article (b) should be obeyed, resistance to the previous decision is not in accordance with procedure and law.

Then the decision to resist in this direction must be broken.

Conclusion: 1-for the reasons described in paragraph (I) above, it is appropriate to resist and to review the appeal appeals of the defendant’s attorney for the amount of non-pecuniary compensation.19. Unanimous in his submission to the law office,

2-the decision of the defendant’s attorney to resist with the acceptance of the appeal appeal for the reasons described in paragraph (II) above 2. provisional 3 of Law No. 6100 for the reasons indicated in Paragraph (b) of the article. article 429 of the Code of Civil Procedure No. 1086 which is being applied according to the law. in accordance with article 440 of the same law. in accordance with the article, the decision was decided by a majority of votes in the second meeting held on 25.04.2018, with a clear path to correction within fifteen days of the notification of the decision.

VOTE AGAINST

The case relates to the determination that he was not indebted due to follow-up.

At the end of the trial by the court, it was decided to pay compensation by BET because of the badness of the defendant creditor, who continued the execution process despite the full payment of the debt after the acceptance of the case and the follow-up.

The person who has the document that he / she will receive, can follow it by getting a warrant from the court, or he / she has the opportunity to receive it by applying directly to the relevant enforcement agency.

However, in the event that the claim is first made subject to execution proceedings, the cancellation of the appeal after a succession or
if it is reflected to the court in the form of a negative assessment case, additional compensation not less than 20% is provided for the debtor who objected to the follow-up even though he knew he was indebted and the creditor who started the follow-up unnecessarily even though he knew he was not a creditor.
The compensation in the concrete dispute is related to the compensation for malfeasance as set out in Article 72/5 of the OIC. In the relevant article, it is stated that “…if it is understood that the follow-up which forces the debtor to file a negative determination lawsuit is unfair and malicious, upon his request, the debtor shall be decided to collect the damages suffered by the cause of the lawsuit from the creditor”.

It is possible to summarize the concept of “bad faith” in the text of the article as the creditor starts or continues to follow up by taking an opposite attitude despite a clear document and information that would make execution follow-up unfair.

However, it is necessary to examine what stage of “follow-up” corresponds to the bad faith phenomenon to be explained to the creditor. In other words, unfair and malevolence “track order” is a factor to be determined as of the date, or “negative clearance” of the case in the ongoing process of opening up to date will mean total attitude and behavior, are required to clarify issues.

Considering that the legislator has included the concept of “…forcing to file a negative detection case” when writing the text, it will be more appropriate to determine whether the debtor is wrongfully forced to file a negative detection case by looking at the general attitude and behavior in the process, not only to evaluate the will at the time of the

In our case, according to the contents of the document contained in the file and not proven otherwise, it is seen that the defendant creditor has collected all the receivables subject to the follow-up file. In this case, the impropriety of the defendant’s continued execution proceedings in succession and the debtor’s attempt to foreclose on his household property and make additional collection from the guarantors rendered unquestionable.

In line with all these assessments, I do not agree with the opinion of the majority that the court has ruled against the defendant-creditor and that the verdict should be upheld in this respect.