22 Jan In The Case Of The Return Of Jewelery, The Responsibility For Proof Belongs To Whom?
Trappings are considered personal goods. The trappings worn by women during marriage can be counted to the woman, no matter who gets stuck. It is determined by looking at the customs and customs of the region where the trappings worn by men during marriage are belonged to.
T. C. 2. Legal Department of the Supreme Court E. 2004/5985 K. 2004/6650 T. dated 24.5.2004; According to the life experiments, the usual jewelery is on the woman or stored in the house. The abandonment of the trappings to the man’s possession has been regarded as an opposite to the usual flow of life. It is always possible to conceal the trappings of the women, who can easily be stored, transported and taken away, and the women who intend to leave the house have to take them beforehand.
Divorce proceedings can be opened with the case of divorce, as well as a separate case after filing a divorce case. In the case of the return of the trappings, the general views accepted as to whom the burden of proof belongs are as follows;
In accordance with the provision of Article 6 of the Turkish Civil Code, each of the parties is obliged to prove the existence of the facts on which the right is based unless a provision contrary to the law is found. As is accepted in the doctrine and the Supreme Court of Appeals, the burden of proof falls on the person who claims or defends the normal flow of life. On the other hand, anyone who wishes to exercise rights for his own benefit should prove his case.
As the rule of the Supreme Court ruled that the woman who left the house as a rule is considered to have taken all her jewelry together, the woman who left the house was obliged to prove that the trappings were left at home. In particular, it should be accepted that the woman, who did not leave the house by divorce, did not take the jewelery with her apart from her husband.
The decision of the Court of Cassation is as follows;
GENERAL ASSEMBLY, LAW: 2010 / 6-46, DECISION: 2010/75
The applicant’s attorney, the petition of the parties, the parties were married on 04.07.2006, the jewelery worn during the wedding is stored in the bank vault, the excuse to go with his client in Izmir, who went to the excuse to go to his family, can not get the jewelry of his client, unless the exact same rights reserved 5.000.00 He requested the collection of YTL. He increased the demand to 12.175.00 YTL with the correction. The defendant’s defender had defended the denial of the case, stating that the applicant had given the court his investigations while carrying on his honeymoon.
In accordance with the provision of Article 6 of the Turkish Civil Code, each of the parties is obliged to prove the existence of the facts on which the right is based unless a provision contrary to the law is found. As is accepted in the doctrine and the Supreme Court of Appeals, the burden of proof falls on the person who claims or defends the normal flow of life. On the other hand, anyone who wishes to exercise rights for his own benefit should prove his case.
The applicant alleged that the jewelery item on the case remained the defendant and the defendant husband claimed that he had been taken away by the defendant. According to life experiments, it is common to keep this kind of goods on the woman or to keep them at home. In other words, the abandonment of the defendant to the possession and protection of the defendant is incompatible with the usual situation.
On the other hand, the jewelery can be stored, transported and carried away. For this reason, it is also possible for the woman who plans to leave the house in advance, to carry them over while leaving the house as it is always possible. As a result of this, it is necessary to accept that the jewelery items of the normal conditions are above the woman.
The plaintiff is under the burden of proof that the trappings of the case existed, that they were forcibly taken away and that they were prevented from being taken away when they left the house.
In the present case, the applicant requested the extradition of the trappings which had been imposed on him due to the marriage and which had been given as a gift. However, in the case of the case, the claimant had not been able to prove that he was prevented from being taken away from his hands and that he had not had the opportunity to take it before. As explained above, the obligation to prove is in the plaintiff. The court, on the other hand, proposed the plaintiffs to propose to the plaintiff that in the session dated 21.05.2008, the defendant spontaneously left the defendant and did not give it to him. Obligation of proof is in the plaintiff and the evidence list of all kinds of legal evidence in the plaintiff by relying on the evidence of the plaintiffs, diamonds taken away, taken away, taken away, the defendant to stay on the defendant’s right to offer the defendant the right to make a decision should be made by reminding the wrong assessment and The result of the missing review was not correct in the written form of the provision was required to be broken.
In the end of the re-trial, the court resisted the previous decision.
RESPONSIBLE: Defendant’s representative
THE DECISION OF THE GENERAL ASSEMBLY OF LAW
After being examined by the General Assembly of Law, it was understood that an appeal was made and the papers in the file were read and discussed:
The case relates to the collection of the price of the personal property based on articles 220, 222 and 226 of the TMK and, if not, the collection of its price.
To the court, the witness statements, the court on the safe deposit box in the bank immediately before the execution of the precautionary injunction was opened by the plaintiff in the early morning and the case was opened by the plaintiff unaware of the fact that there is nothing valuable in the case, the defendant is also applied to the court upon appeal, the appeal was appealed by the defendant attorney.
Special Circle; for the reasons taken above, it was decided to break the provision.
The plaintiff declared that they did not want to offer the oath after the violation, and the court resisted the previous decision.
Dispute between the local court and the Special Chamber; Who collects the burden of proof in terms of jewelery is collected.
According to Article 220 of the TMK, the goods obtained through unpaid winning are covered by personal goods. Article 222 of the TMK regulates the way in which personal property is proven, and in 226th Article, it determines the method of return of the goods.
In accordance with the provision of Article 6 of the Turkish Civil Code, each of the parties is obliged to prove the existence of the facts on which the right is based unless a provision contrary to the law is found. As is accepted in the doctrine and the Supreme Court of Appeals, the burden of proof falls on the person who claims or defends the normal flow of life. On the other hand, anyone who wishes to exercise rights for his own benefit should prove his case.
The applicant alleged that the item of the tricks, which was the subject of the case, was left in the defendant and the defendant husband claimed that he had been taken away by him. According to life experiments, it is common to keep this kind of goods on the woman or to keep them at home. In other words, their abandonment by the defendant to their possession and protection is incompatible with the usual situation. On the other hand, the jewelery can be stored, transported and carried away. For this reason, it is also possible for the woman, who intends to leave the house, take them beforehand, as it is always possible to carry them on, while leaving the house. As a result of this, it is necessary to assume that, in normal circumstances, jewelery is on the woman. In this case, the presence of the jewelry, the house was taken away from the force and taken away from being taken away, the woman is staying at home, the woman must prove. The determination of the Special Chamber in these aspects is in principle correct and appropriate.
However, while these principles are true, the application of abstract norms to events must be followed by observing the nature of the concrete event and a right of justice and justice.
In concrete cases, as the testimony of witnesses heard during the divorce case in the whole file scope and the defendant, the defendant and the defendant went to İzmir for a visit while they were living in Denizli, the defendant had left the plaintiff in Denizli and returned to Denizli as a result of their discussion in a café in İzmir. and the applicant woman was in Izmir.
Due to the incidence of the incident, the plaintiff woman did not leave the house by designing divorce. With this thought, it is not possible to accept that the plaintiff who did not leave the house took her by the side of the page. On the other hand, the plaintiff was ordered by Y.Ç. In his statement, the defendant in the process of divorce during the process of claiming that if the plaintiff claims that he would refund all of his jewelry in the absence of material damages, and in this case, the witness also implies that the trappings in the presence of the trappings.
The applicant insisted that from the beginning of the proceedings the trappings of the case were kept in the safe deposit box of the defendant and demanded a preliminary injunction on the account of the defendant when the case was opened. On 15.06.2007, the bank, where the account of the defendant was placed on account of a precautionary measure, stated that the defendant had a precautionary measure on the account of the defendant. It has. When the plaintiff demanded the discovery of the safe at the cash register, two passports, one CD and an insurance policy were found in the defendant’s safe deposit box during the examination carried out at the site, and the case was opened by the defendant on 04.07.2007 at 08:45. It was observed.
When this date and time are taken into consideration, it is understood that the court was the day after the injunction was placed on account of the defendant. In addition, it is evident that the items that were put in the case as of the time of the opening of the case did not contain any items that would have to be placed in the case very early in the day.
This is the case; Since the claimant had fixed the house from the house in a quarrel and with the idea of leaving, he went to Izmir with his wife, and started to live separately as a result of a discussion in a café in İzmir. In this case, the burden of proof will be displaced and the burden of proving that the gold is no longer in itself falls to the defendant man. The day after the precautionary measure placed on the account of the defendant, it was found that the defendant’s safe deposit box was opened at an unusual hour and documents which were not normally required to be kept in the safe deposit box at the checkout. In this way, although there were evidence to prove that the court in question had remained in the defendant, the court had been offered to the plaintiff for the amount of the trappings and whether the defendant had remained or not.
There is no discretion in the decision on the adoption of the case, concluding that the claimant’s case was proved when all file coverage, the development of the events and the complementary feed exercised by the plaintiff were also observed.
However, since the objection objections of the defendant representative on the cost of the jewelery judged by the court according to the way of destruction are not examined, the case must be sent to the Special Chamber in order to examine these matters.
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