08 May In Cases Not Subject To Fees, The Lawsuit Is Deemed To Have Been Filed On The Date Of Transfer Of The Petition
Summary: in cases that are not subject to fee, the judge’s petition of lawsuit is transferred on the date; in cases that are subject to fee
if the fee is paid, the lawsuit is considered to have been filed on the date. However, the case is more likely to be settled by the petitioner
if it is documented by the pen that the court has been assigned to the court at a later date, the case will be filed at that date.
requires the adoption for an opening.
(1086 P. K. m. 178)
Case: Act 178 of the Civil Procedure Code No. 1086. according to the article, when the case
5.6.1974 day of the General Assembly of the law of the Supreme Court on which it will be considered opened and 1970/7-877-648
numbered; 4.6.1976 days and 1976/5-1783-2181 numbered; 17.2.1965 days and 524 / D-1-74 days; 2.4.1969 days and
1967/9-772-207 by Decision No. 1. Law office 5.5.1981 days and 4270-6131 numbered; 25.6.1981
day and numbered 3329-8613; 4. 15.6.1972 day and 3710-5743 of the law department; 5. Law
28.6.1961 days and 3000-2881 numbered; 16.11.1981 days and 10563-11150 numbered; 24.6.1969 days
and No. 3072-3818; 6. Law Department 31.5.1957 days and 2920-4661 numbered; 21.9.1982 days and 7639-
No. 8106; 8. Law office 22.6.1979 day and 6154-7150 numbered, 11. 16.9.1976 Of The Law Department
day and No. 3304-3793, 15. 15.4.1982 day and 681-890 between the decisions of the legal department
upon the request of combining the case law by suggesting that there is a conflict of case law,
among the decisions found in contradiction, the Supreme Court 1. 30.6.1983 days and 66 numbered of the Presidential Board
by adopting the decision, it is desired to eliminate this discrepancy by combining the case law.;
Upon hearing the statements of the rapporteur member at the Grand General Assembly of the unification of the case law of the Supreme Court and
the merits of the work were discussed after a unanimous decision was made that there was a discrepancy between the decisions:
Verdict: some of the causes of litigation in terms of both material law and procedural law
there are consequences. For example, the statute of limitations for filing a lawsuit is cut. Plaintiff, without the defendant’s consent
he can’t stop pursuing his case. As such, it is of great importance to determine the time at which the case is filed.
it moves.
178 Of The Code Of Civil Procedure. article (whether or not subject to charges), ” lawsuit,
the case is deemed to have been filed on the date of registration of the petition to the court.” In this provision
(registration of the petition to the court item)
it means the record. However, it has to be done while a lawsuit is being filed.
the process does not consist solely of the registration of the petition in the court’s notebook.
Indeed, the petition is given to the judge first. The judge wrote the petition (the date on which it was issued)
by signing) remit to the court pen. If the case is subject to charges, plaintiff charges
After paying the required fees in accordance with the provisions of the act, the petitioner is in the court’s pen
it is saved in the relevant book. As a matter of fact, this is the day the Code of Civil Procedure came into force.
this is the way the established practice is. It should be noted immediately that if the above-mentioned transactions are done and finished on the same day,,
there is no hesitation when the case is considered to have been opened that day.
However, with the date that the judge remitted the petition to the court item, in cases that were subject to the charge,
if the required fees are paid and the dates on which the petition is registered in the register are different, the case is
when will it be opened?
This is the problem that constitutes the subject of unifying case law and needs to be solved.
During the negotiations, the cases that are not subject to fees, the cases that are subject to fees, the opening of the case
his time has been separately sanctioned and discussed. That is to say:
1-in cases that are not subject to fees, the petition is sent to the author by the judge.
it’s almost court-ordered. Because, in cases like this, the plaintiff has to file a petition.
he has fulfilled his duty by giving it to the judge and there is no further action left to take. One
in other words, the plaintiff’s power of saving on the petition has expired and the petition
it’s the property of the court. In this respect, the judge did not return the petition to the plaintiff and related on the same day
an officer and the court for registration in the book (basis, communication or trust book)
it should be sent to his pen. Which means that, in cases that are not subject to charges, the petitioners
the petition must be registered in the book on the day it is transferred to the court pen by the judge. Becoming
thus, the date on which the judge referred the petition to the pen should be counted as the date of the registration and the date of the trial at that time should be considered.
it must be considered to have been opened.
However, the registration process of the petition is at a later date than the judge’s remittance date.
if done, at what date will the case be considered opened?
This may be the result of the plaintiff’s flawed conduct, as well as an omission in the court’s pen, and
he could have been born without delay. Indeed, after the judge remanded the petition, an officer
(in a wrong and objectionable manner) the petition to the business owner
if he has returned it, this person will not take the petition to the court on the same day, for a period of time in his own seven
he may have kept it and penned it at a later date. However, the business owner petitioned
negligence of the officer in charge of his petition, even though he gave it to the court pen on the day the judge remanded it
it is also possible that the reason was not recorded in the book on the same day. In such a case, the plaintiff
the plaintiff of the delay in the registration process because he has fulfilled his duty
it should have no consequences against it and the claimant should not be harmed by negligence of the pen. So,
the case must be considered to have been filed on the date the judge referred the petition to the author.
In response, the plaintiff submitted the petition to the court on the same day that the judge remanded it to him.
if he has not taken it to his pen and has given it to the pen after carrying it with him for a while, this is the fault of his behavior
has to pay for it. However, after the date of transfer by the Relevant Person of the petition,
it must be documented by the pen that it was given to the court on a date and the signature of the business owner in that document
should be included. Otherwise, post registration must be deemed to be delayed in the court’s pen, and the case is that the judge remit the petition
it should be considered opened on the date. Because of the negligence of the plaintiff, the officer in the court pen,
it is very difficult and even impossible to prove that the petition was registered late. whereas, the person concerned
that the petition was penned on the day after the judge’s remittance, as described above
in case of certification, the case will be deemed to have been opened on that date and no further proof of this direction will be required.
In such cases, which are not subject to charges, the judge shall consider the case to have been filed on the date of the transfer of the petition. But,
the petition is submitted to the court at a later date by the relevant person.
if it is documented, it must be accepted that the case was opened on that date.
2-in cases subject to fees, the plaintiff has to remit his / her petition to the judge.
he can’t be considered to have carried out the mission. Because, the petitioner’s petition by transfer of the petitioner by the judge
the power of saving on it has not expired, and the petition has not become the property of the court. Plaintiff,
He has also deposited the fees he is obliged to pay in accordance with the provisions of the Fees Act.
must. Thus, after completing the proceedings related to the fee and paying the required fees, the claimant
he has fulfilled his duty. After that, it is no longer plaintiff’s case petition
the power to save on it has expired and the petition has become the property of the court.
In this case, the required fees accrue upon the submission of the petition to the author in cases subject to fees
it must be collected and the petition must be recorded in the book on that day. Where there is a teller organization
after the plaintiff has paid the required fees, the petition is not given to him and he is directly in court with an officer
it should be sent to the pen and registered to the relevant book in the pen on the same day. Collection of the mortar by Finance
if necessary, an accrual certificate should be given to the relevant person and the receipt of the payment of the fees should be
upon submission to the court item, registration must be carried out in the book. Because, the necessary lawsuit fee
being paid is no longer a job to be done by the plaintiff. If the petition is registered in the book
it is a procedure to be done by the court’s pen.
However, the petition has been given to the plaintiff and his side has not taken action as described above.
if the mortar was taken to the pen on the day after the deposit, the officers in this direction pen
the petition must be certified by the applicant’s signature. Lawsuit in this case,
the petition will be filed on the date it is submitted to the court. Otherwise, the petition of the lawsuit,
it is accepted that the required fees were paid to the court on the date of payment and the case was opened on that date.
it will count. Otherwise, the petitioner shall enter the court item on the date of payment of the required fees.
it is accepted that the case was opened on that date. Reasons for this view, subject to the above fee
it is useful to repeat here, as it is mentioned during remarks on cases that are not
it hasn’t been seen.
Therefore, in cases subject to fees for the reasons described above, a lawsuit was filed on the date of payment of the fees
about so. However, the petition for the case was penned to the court at a later date
if it is documented, it must be accepted that the case was opened on that date. During the deliberations of the board, a number of members were asked by, (… subject to charge or not
the humk of the case.nun 178. the petition is recorded in the notebook in the court’s pen after the provision of the article
the date on which the application will be filed, the date of the judge’s transfer of the petition or the date of payment of the fee,
that it cannot be considered as the date of opening, that the case may be considered opened even if the tuition has not been paid,
fees can be paid later…) opinions on its path have been suggested.
However, these opinions, the above-mentioned reasons and opinions of the majority of the board
it has not been adopted by.
Again put forward by some board members, (.. during the continuation of the talks, with 3.2.1984 days
The Articles of the courts of Law and Commerce, which were published in the Official Gazette and which came into effect
18 of the directive. the regulation amending the article determined the time of the trial to be opened,
therefore, the subject of unifying case law remains..) See also in the path, (.. Made in regulation
the change will not affect negotiations to merge case law…) large majority of the board on the grounds
it has not been adopted by.
Conclusion: due to the reasons described above, in cases that are not subject to charges, the judge remit the case petition
on the date; in cases subject to fees, the case will be deemed to have been opened on the date of payment of the fee; however, the case
the petition was submitted to the court at a later date by the relevant person.
first and second, if documented, that the case should be accepted that it was opened on that date,
since a 2/3 majority was not achieved in the meetings, 19.12.1983 in respect of cases not subject to fees
in terms of the third day and the cases subject to charges, with a majority of votes in the fourth meeting with 6.2.1984 days it was decided. Negotiations to merge case law dated 3.2.1984 and numbered 18301, which are not yet complete
Published in the Official Gazette and entered into force on the same day ” Law and Commercial Courts article
The regulation on making changes in the works instructions” has determined the date of the trial and
he has made detailed provisions in this regard. Hence the subject and meaning of combining case law now
did not stay. As is known, to explain the rules of the service to those who will see this service in a service area,
regulations enacted to guide them and regulate the internal activities of the administration;
in terms of form of administrative, material law in terms of general and concrete provisions containing objective legal
it is policy saving. With this quality, Turkish together with regulations, statutes, laws and Constitution
The persons and institutions of the legal system constitute the source of binding written law. Formerly legal
the basis of”the law on the law and the promulgation of the laws and regulations and the date of its effective date” is 1.
the regulations found in Article 113 of the 1961 constitution for the first time. mddesinde and 1982 Constitutionssee also
124. they have become a source of constitutional law today by being regulated in their articles, other
they have taken the power of sanctions from the Constitution with a narrative. The subject is addressed within the hierarchy of norms
time, the force and scope of the said resources are undoubtedly not of the same importance.
The well-known traditions of the Turkish legal system envisioned an order from concrete to abstract, primarily execution and
all persons and institutions, including judicial organs, respectively regulations, statutes, laws and Constitution
forced to comply with its provisions. Statutes and regulations that you must immediately add
laws, statutes, laws and finally laws are not contrary to the Constitution, rather
it is essential that contrary provisions are not carried. Then the judicial organs of the chain in this order other
they must first apply the concrete provisions if they exist on the condition that they are not contrary to their rings.
During the negotiations, it was absolutely not stated that the provisions of the regulation were against the law.
and no opinion has been put forward on this issue. Already regulation 18. article ” lawsuit
the date of registration of the petition is the date of the opening of the case.”
verdict; humk’s 178. the case on the date of registration of the Arzahals to the court item “as stipulated in the article
substituted addolunur ” (pen record) is a phrase that brings clarity and certainty
the claim of violation of the law would not have been valid and acceptable.
Moreover, the claim that the regulations are against the law cannot be examined in the general courts and this
the administrative jurisdiction of the dispute concerning this aspect with the adoption of the law as a preliminary issue (salacious)
it is an allied view in the doctrine that it should be expected to be resolved in its place. (Ord. Prof. Dr.
Siddik Sami Onar, general principles of Administrative Law, 1960, Volume: 1, Page: 294). All of these
although a valuable majority of regulations generally merge the judiciary and Case Law in particular
it is possible to participate in their opinion that it will affect their negotiations and is not binding
is not included. 124 Of The Constitution Of The Republic Of Turkey. Article 11. Supreme Court under Article
it is also a basic rule of law that binds. It is our opinion that this issue should not be considered in the Constitution
it creates a clear contradiction.
Our views on the merits of the issue are also irreconcilable differences with the opinions of the precious majority
illustrates. In fact, it is extremely difficult to participate in the subject of consolidating the case law raised in the form of what date the case will be considered opened. Zira Humk’s 178.
in the article the case shall be deemed substituted at the date of registration to the court item of the petition
it has been explicitly stated. In fact, the subject of hesitation is what the phrase” record to the court pen ” means
it was revealed during the continuation of negotiations that he was meeting about the need to be understood. As a result
the date of payment of fees in cases subject to charge from the phrase “registration to the court item” of the majority,
in those who are not subject, it is determined that the judge understands the date of the transfer. Humk’s 178.
adoption and acceptance in the form of registration in the main book of “registration to court item” as stipulated in the article
it is indisputable in the doctrine (Prof. Dr. Baki Kuru, Civil Procedure, 4. Basi 1980, Volume: II,
Page: 1120-Prof. Dr. Ilhan Postacıoğlu, Civil Procedure Law lessons 1970, page: 327 etc. – Prof.
Dr. Necip Bilge, Assoc. Dr. Ergun Önen, Med8eni judicial law lessons 1978, page: 432 etc. –
Assoc. Dr. Ergun Önen, Civil Trial Law 1979, page: 144-Prof. Dr. Saim Ustundağ Civil
Judicial Law 1977, Volume: 1, Pages 371-380). Judge’s petition or other written
it is not based on a 9 written sources and its origins are Imperial.
it is an Ottoman tradition that extends to its bureaucracy. Such a method exists in contemporary comparative law
the applicant does not have any direct contact with the judge. Otherwise
27, 32 and 127 of the levies Act. provisions of articles and even dated 16.11.1983 and numbered 5/6
Considering the rationale for the decision to merge case law, deposit of the fee or
the fact that not to deposit is of no importance alone and that the arbitrariness of depositing fees is not the case in court
it is from the explanation that it is a procedural 9 process which is recorded in its pen. Moreover, judge
to have the petition registered in the main book without transfer or payment of fees
it is accepted by the valuable majority that the case should be considered opened. The existence of this obvious contradiction
any result other than registration of procedural transactions relating to remittance or fees
it’s a clear statement that she won’t give birth. The date of registration with the Taihi of remittance or mortar
in the event that the recording is made at a later date with a different expression, the case
in terms of the opening date, the possibility of a right being lost constituted a major concern of the majority.
If this delay is due to the negligence of the plaintiff, that is, remittance or levying the case petition is made
if it is due to the deposition of the court item at later dates rather than on the day,
nothing could be more natural than for the plaintiff to suffer the consequences of such negligence. If late
if the record is caused by negligence of the pen staff and the negligence has resulted in a loss, the plaintiff’s general
according to the provisions, the way of elimination of damages from those responsible or employed is closed
is not. In order to save the plaintiff from the burden of filing such a lawsuit, the lawsuit is considered to have been filed.
the opinion to change the legal rule on his time is in our view to the system and, more importantly, the plaintiff
it does not conform to the basic principle of balancing the benefit with the benefit of the defendant.
In that case, the majority justification for the decision to merge case law was that of Humk’s 178. and the Republic of Turkey
124 of its constitution. and 11. I cannot agree with the idea that it constitutes a clear violation of its provisions.
No Comments