16 Jan Insurance Detection Case
T.C SUPREME COURT
Basis: 2018 / 6938
Decision: 2019 / 177
Decision Date: 17.01.2019
A) Plaintiff Prompt:
The case relates to the request for a decision to determine the insurance start date as 01/05/1985.
B) Respondent’s Response:
In summary, the defendant’s Social Security Agency attorney stated that they objected to the case filed by the plaintiff in terms of the time-out Authority and the period of deduction of rights, that the plaintiff worked …Forest Products … Shti … this workplace, which was processed in the file of the register, was covered by the law on 01/08/1982, the plaintiff did not have any application to the institution, so the case was decided to be dismissed.
C) justification and decision of the Court of First Instance:
By the court of First Instance;”…. the plaintiff, …’e he started working as a worker in the workplace, which continued without interruption the work of the plaintiff, the plaintiff acting with the orders and instructions of his employer, the plaintiff spent the entire shift for the employer in the workplace, current legal regulations are considered together and the witness accounts, when the plaintiff’s 01/05/1985 in history’began to work in the workplace when the work continued without interruption on the date requested by the plaintiff of the plaintiff which the plaintiff, …’E started to work in the workplace, this work is based on an actual study and real it should be accepted that, within the scope of the file of the document already issued by the employer and confirm the plaintiff’s claim in this matter because it is understood that for all these reasons, the plaintiff’s case should be decided upon the adoption of the ” grounds “with the acceptance of the case; the plaintiff and his son 10/04/1972 d.lu TC with the ID number … …’s 01/05/1985 the determination of the date of the start date of insurance,” it has been decided. Appeal Reference; The defendant’s attorney requested that the decision of the Court of First Instance be lifted on the grounds that adequate research had not been done and that the employer had not been included in the case.
D) grounds and decision of the District Court:
“According to the records and documents in the file, the declaration of entry into the insured job stating that the plaintiff started working as an employee on 1/5/1985 was given to the institution within the period of entitlement, again indicates that he worked on that date the insurance registration card was submitted to the file, the rest of the payroll witnesses confirmed the work, the identification information in the declaration of entry into the work and the population records of the plaintiff are compatible ”the insured workplace is covered by the law on this date, According to the insurance start date shown in the institution records, it is understood that the plaintiff has legal benefit in the filing of the case at hand, on 22.7.2017, the plaintiff has applied to the institution regarding the determination of the insurance start date, the insured employment declaration has not been processed due to the provision of the institution within the rights reduction period, the payroll witnesses have confirmed the work. “grounds
“1-353/1-b of HMK 6100 of the request for the protection of the defendant’s Attorney.The adoption under this clause 2,
2-… 1. 12/12/2017 day and 2017/255 basis of the Employment Tribunal, 2017/618 decision no.,
3-with the acceptance of the case, the plaintiff worked in accordance with the contract of service for a period of 1 day on 01.05.1985 and Law No. 506 60/G and 108.according to the article, the insurance start date is 18 years old 10.04.1990 date is determined,” it has been decided.
“ Although BAM overturned the decision, it ruled the attorney’s fee against the institution. It was decided by incomplete examination.”he appealed on his grounds
Attorney of the plaintiff; ” the application of Article 60/g without request is against the procedure and law.”he appealed on the grounds.
F) evaluation of evidence and justification:
1-it is decided to reject all appeals of the plaintiff’s attorney, the defendant’s attorney of the institution, beyond the scope of the following bend.
2-108 of the law No. 506, which constitutes the legal basis of the case.Article 1. in the paragraph; ” the beginning of the period of insurance to be taken into consideration in the application of Disability, old age and death insurance is the date when the insured person started working for the first time in accordance with the repealed laws 5417 and 6900 or this law.”the provision is regulated. In order for a person to be considered insured, the existence of the declaration of entry into the insured job is not sufficient. At the same time, in the form determined by the law of that person (2 of the law No. 506. Article 4/A of the law No. 5510) is also a condition for its action. This direction is 6 of Law No. 506. Article 7/a of Law No. 5510 and the General Assembly of the Supreme Court of law 1999/21-549-555, 2005/21-437-448 and 2007/21-306-320 it was also highlighted in their numbered decisions. In this regard, it is obvious that the plaintiff should be investigated by method whether he works in the workplace. Documents that will reveal actual or actual work, together with the declaration of entry into work, 79 of the law No. 506. 17 of the regulation on social insurance operations with monthly insurance Day information that reveals the number of days of the insured person specified in the article, earning status, working dates. 4-month premium payrolls specified in the article are mandatory documents to be given to the institution. Although the declaration of entry into work issued by the institution within the period of its method indicates that the person has been hired, it alone cannot be considered sufficient in terms of revealing the existence of actual work. In order to be able to mention insurance, the existence of the work, in the application of the Supreme Court Law No. 506 79/10. determination of insurance based on the article should be determined in accordance with the principles adopted in terms of cases. Because each case for the beginning of the insurance also includes a request to determine the insurance. On the contrary, the idea creates an unfair and unfair situation between those who work and those who do not work, especially in terms of the insurance period prescribed for the adoption of the old age pension. For this reason, in cases where a declaration of entry to work has been issued but other legal documents are not available, convincing and sufficient evidence should be sought that can reveal the phenomenon of work, in such cases based on public order, the judge should determine whether the conditions of insurance are formed by expanding the investigation directly in accordance with his duty. In this direction, the General Assembly of the Supreme Court Law Day 16.9.1999 1999/21-510-527 day 30.6.1999 1999/21-549-555, 5.2.2003 day 2003/21-35-64, 15.10.2003 day 2003/21-634-572, 3.11.2004 day 2004/21-480-579 and 2004/21-479-578, 10.11.2004 day number 2004/21-538 1.12.2004 and day number 2004/21-629 have been highlighted in the decision of.
Such cases should not be considered as just the determination of one day’s work, the rights that the beginning of the insurance, which will be determined by the acceptance of one day’s work, will earn along with the period of insurance that will be provided to the insured, should be taken into account, and whether there is an active work together with the declaration of entry should be specifically determined, accordingly, the statements of those who are on the payroll of the period and whose work is determined by existing witnesses and, if necessary, by records that they are employees of neighboring workplaces or by research that will be conducted through law enforcement should be applied, and the decision should be made according to the result. From records and documents in the file; 10/04/1972, born on 01/05/1985 in plaintiff’s declaration, with the date input to be 13 years old, in the province of … registration number of the statement dated 01.05.1985, titled 24/06/1985 was issued to the institution on the date of … at work, on the same date presented a copy of the insurance card, registration number 18329 Forest Products Food San. Co. STI workplace was covered by the law between 01/08/1982 and 30/06/2006, 1985/1 of the said workplace. two other payroll witnesses who were listened to , who were given term pay, had the name of The listened witness ( his brother) …and confirmed the claim 1984/1-2-3. in 1997/3, the plaintiff’s service schedule confirmed that he had worked during the period and they also confirmed the claim. during the period 4 / a study began, it was understood that the plaintiff, who was 13 years old at the time of the request, decided to accept the case without investigating the educational and apprenticeship status.
In a concrete case, it was wrong that the plaintiff, who was 13 years old at the time of the claim, worked for the production of forest products in the workplace or for the purpose of learning a profession and art, without examining the issue. In determining the nature of the relationship between the parties, in other words, it should be decided by looking at the working relationship when deciding whether the plaintiff is an apprentice in the specified circuit. Apprenticeships can be mentioned if the superior nature of the contractual relationship is not a working phenomenon, but a profession and the teaching of the arts to the insured. If The Apprentice is actually participating in production-related work in the workplace, vocational and art education are kept in the background, then the apprenticeship relationship cannot be mentioned. In this case, the work to be done by the court; resting again to ask the nature of work the plaintiff’s witnesses, plaintiff on that date, the student is to investigate whether, by the phenomenon of working to get records on the condition of education in order to examine whether apprenticeship is a record from the relevant authorities to ask the plaintiff about the plaintiff’s insurance, which was given the registration number to know the year which the institution unitesinc from the series of the study of the phenomenon based on concrete and credible information 506 in the way the law 2, 6, 9, and 79/8. after setting out the articles in accordance with the nature of the case is concerned with public order and the investigation is expanded and decided according to the result. The court, without taking into account these material and legal facts, is against the procedure and the law to establish a provision in writing with incomplete examination and is the cause of violation. In that case, the appeals of the defendant’s Attorney aimed at these aspects must be accepted, and the “acceptance of the case” decision re-issued by the District Court must be overturned.
D) conclusion: the decision of the District Court of Appeal, for reasons written above, is 373/2 of HMK 6100. a unanimous decision was made on 17.01.2019 to overturn the article, to send the file to the District Court that made the decision, to return the appellate fee to the appellate plaintiff upon request.