19 Feb INSURANCE DETERMINATION CASE-SUPREME COURT DECISION
T.C THE SUPREME COURT
21.law office
Base: 2018/ 6938
Decision: 2019 / 177
Date of Decision: 17.01.2019
A) Plaintiff’s Request:
The case is related to the request to decide on the determination of the insurance start date as 01/05/1985.
B) Respondent’s Response:
In summary, the defendant’s deputy of the Social Security Institution; this workplace, where the plaintiff declares that they object to the lawsuit filed by the plaintiff in terms of the statute of limitations and the period of limitation of rights, the plaintiff works … Forest Products … Sti … is listed in the registry file, was covered by the law on 01/08/1982, the plaintiff did not have any application to the institution, so he requested that the case 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 to the work of the plaintiff, the plaintiff, acting with the orders and instructions of his employer, the plaintiff spent in the workplace of the employer for the entire shift, the current legal regulations and witness accounts are considered together when the plaintiff’s 01/05/1985 in history’began to work in the workplace, when requested by the plaintiff on the date of the plaintiff which the plaintiff’s work continued without interruption, …’E started to work in workplace, this study is based on an actual real work, and it should be accepted that, within the scope of the document issued by the employer of the file already and confirm it is understood that because the plaintiff’s claim in this matter 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 ID number … with …’s start date of the determination of the date 01/05/1985 insurance,” it has been decided. Application For Appeal; The Defendant’s deputy requested that the decision of the Court of first instance be reversed on the grounds that insufficient research had been conducted, that the employer had not been included in the case, and that the Defendant’s Agency had not been adequately investigated.
D) Justification and Decision of the District Court of Justice:
According to the records and documents in the file, the plaintiff started working as a worker on 1/5/1985, the insured employment entry statement was issued to the Institution during the period of entitlement reduction, again indicates that he worked on the said date, the insurance registration card was submitted to the file, the listened payroll witnesses confirmed the work, the identification information in the employment entry statement and the plaintiff’s population records were compatible, the insured workplace was covered by the law on that date, According to the insurance start date shown in the institution’s records, it is understood that the plaintiff has a legal interest in opening the case at hand, on 22.7.2017, the plaintiff applied to the Institution to determine the insurance start date, the right reduction period did not work due to the fact that the insured employment entry notice was issued to the Institution during the right reduction period, payroll witnesses confirmed the work. ” grounds
“1-353/1-b of HMK No. 6100 of the request for appeal of the Defendant Institution’s deputy.The adoption under this clause 2,
2-… 1. 12/12/2017 day and 2017/255 Basis of the Labor Court Decision No. 2017/618 on the ABOLITION, replacement of,
3- Upon ACCEPTANCE of the case, it is established that the plaintiff worked for a period of 1 day on 01.05.1985, subject to a service contract, and that the law No. 506 60 / G and 108.in accordance with article 10.04.1990, when the insurance start date is 18 years old, it has been determined that ”it has been decided.
E) Appeal:
The defendant, the deputy of the Institution, said, ” Although BAM overturned the decision, he ruled against the Institution on the attorney’s fee. It was decided by incomplete examination.” he appealed on the grounds that
Deputy plaintiff; “The application of Article 60/G without a request is contrary to procedure and law.” he has appealed on the grounds of appeal.
F) Evaluation of Evidence and Justification:
1- It has been decided to reject all appeals of the plaintiff’s attorney and the defendant’s Institution’s attorney outside the scope of the following paragraph.
2- Article 108 of the Law No. 506, which establishes the legal basis of the case.article 1. in its paragraph; “The beginning of the insurance period, which will be taken into account in the application of disability, old age and death insurance, is the date when the insured person starts working for the first time in accordance with the repealed laws 5417 and 6900 or in accordance with this law.” the provision is regulated. In order for a person to be considered insured, the presence of an insured employment entry statement is not enough. At the same time, he is a person in the form established by Law (2 of Law No. 506. article 5510 and article 4 / a of the Law No. 5510) it is also a condition that it works actionally. This direction is provided by Article 6 of the Law No. 506. article 7 / a of the 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 is also emphasized in their numbered decisions. In this regard, it is obvious that the method should be investigated whether the plaintiff works actively in the workplace. Documents that will reveal the actual or actual work, as well as the declaration of entry into work, are part of Article 79 of Law No. 506. 17 of the Social Insurance Transactions Regulation with monthly insurance day information that reveals the number of days, earnings status of the insured person specified in the article, together with their working dates. these are mandatory documents to be provided to the Institution, such as the 4-month premium payrolls specified in the article. Although the job entry declaration issued by the method and given to the Institution within the period indicates that the person has been hired, it cannot be considered sufficient alone in terms of revealing the existence of the actual work. In order to be able to speak about insurance, the existence of the study is required by Law 79/10 of 506 on the application of the Supreme Court. the determination of insurance based on the article should be determined in accordance with the principles adopted in terms of litigation. Because every case for the beginning of insurance also includes a request for the determination of insurance. On the contrary, this creates an unfair and unfair situation between employees and non-employees, especially in terms of the insurance period dec for the acceptance of the old-age pension. Therefore, in cases where an application for employment has been issued, but there are no other legal documents, convincing and sufficient evidence should be sought that can establish the fact of work, and in such cases based on public order, the judge should determine whether the insurance conditions have occurred by expanding the direct investigation in accordance with his duty. In this direction, 16.9.1999 day of the General Assembly of the Supreme Court Law 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 day, and the number 2004/21-have been highlighted in the decision of 629.
Such cases should not only be considered as the determination of a day’s work, the rights that the onset of insurance, which will be determined by the acceptance of a day’s work, will provide the insured with the duration of insurance, should be taken into account and it should be determined in particular whether there is an active work with the declaration of entry, accordingly, the statements of the persons who are included in the period’s payroll and whose work is available on the date requested by the plaintiff, as well as records that they are employees of neighboring workplaces, if necessary, or research that will be conducted through law enforcement, should be applied to, and a decision should be made based on the result. From the records and documents in the file; 10/04/1972 born on date 01/05/1985 plaintiff’s declaration in the input to be 13 years old, in the province of … registration number 01.05.1985 the statement dated, titled At Work was issued to the institution on the date of 24/06/1985, presented a copy of the insurance card on the same date, registration number 18329 Forest Products Gıda San. Ltd. Şti workplace was covered by the law between 01 dec08/1982 and 30/06/2006, from the said workplace 1985/1. the other two payroll witnesses who were listened to had the name of the witness (his brother) who was listened to and confirmed the allegation that they had been given a period payroll 1984/1-2-3. 1997/3 on the plaintiff’s service chart, in which he had work during the period and they also confirmed the claim. it was understood that the 4/a study started in the period, and it was decided to accept the case without investigating the education and apprenticeship status of the plaintiff, who was 13 years old at the time of the request.
In the concrete case, it was erroneous that the plaintiff, who was 13 years old at the time of the request, reached a conclusion without examining whether the forest products were intended for production at work or worked for the purpose of learning a profession and art. When determining the nature of the relationship between the parties, in other words, when deciding whether the plaintiff is an apprentice in the specified circuit, a deci-sion should be made by looking at the working relationship. Apprenticeship can be mentioned if the superior nature of the contractual relationship is not the phenomenon of work, but the teaching of a profession and art to the insured. If an apprentice actually participates in work related to production at work, and professional and art education is kept in the background, in this case, there will be no mention of an apprenticeship relationship. In this case, the work to be done by the Court; the nature of the plaintiff’s witnesses work to ask the resting again, the plaintiff on that date, the student is to investigate whether, by working on the condition of the phenomenon of Education records, to examine whether there is a record from the relevant authorities to ask about the plaintiff’s apprenticeship, the plaintiff’s insurance, which was given the registration number of the year in which the institution unitesinc to know from the series, based on the study of the phenomenon in the way of concrete and credible information 506, law 2, 6, 9, and 79/8. after revealing the articles in accordance with them, it consists in taking into account that the case is qualitatively related to public order, expanding the research and making a decision according to the result. It is contrary to the procedure and law for the court to establish a provision in writing with incomplete examination, regardless of these material and legal facts, and this is the reason for the violation. In that case, the appeals of the defendant Institution’s deputy aimed at these aspects should be accepted, and the DECISION ON the “Acceptance of the Case” RE-ISSUED by the District Court of Justice SHOULD BE OVERTURNED.
G) CONCLUSION: The decision of the Appealed District Court of Justice is based on 373/2 of HMK No. 6100 for the reasons written above. according to the article, it was decided unanimously on 17.01.2019 that the case would be OVERTURNED, the file would be sent to the District Court that issued the decision, and the appeal fee would be returned to the appellant upon request.
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