T.C. SUPREME COURT

4.law office
Base: 2016/3774
Decision: 2016/7793
Date of Decision: 13.06.2016

COMPENSATION CASE – IT IS NECESSARY TO DETERMINE THE START DATE OF THE STATUTE OF LIMITATIONS AS OF THE DATE OF THE PLAINTIFF’S LOSS – THE STATUTE OF LIMITATIONS HAS EXPIRED – IT IS NECESSARY TO DECIDE ON THE DISMISSAL OF THE CASE DUE TO THE STATUTE OF LIMITATIONS IN TERMS OF THE REQUESTED SECTION

SUMMARY: Plaintiff’s damages…./…./…. it has been realized as of the date and the start date of the statute of limitations must be taken as this date, in which case the reclamation petition is issued ………. as of the date, BK 60 and TBK 72. the statute of limitations periods of 1 and 2 years, which are regulated in the article, have expired. Since the defendant is in the statute of limitations for the period against reclamation, it is necessary to decide on his refusal due to the statute of limitations in terms of the section requested by the reclamation, while his acceptance was not considered correct, it is understood that the decision was approved when the decision should have been overturned, the defendant’s attorney’s request for correction of the decision should be accepted, the decision to approve our apartment should be removed, and the decision should be overturned.

(6100 pp. K. m. 107, 109) (6098 P. K. m. 72) (818 P. K. m. 60)

Case and Decision: The day and number of the deci-sions given by the local court for the compensation case between the parties written above; Our apartment.. it has been decided to be approved by the numbered decree. It has been requested that the decision be corrected by the defendant’s deputy within the period of 440-442 of the HUMK. in accordance with the articles, the report prepared by the audit judge and the papers contained in the file were examined and discussed as necessary.

1- Amendments to Article 440 of the Code of Civil Procedure in the face of the necessary reasons stated in the appeal decision. a defendant who does not comply with any of the reasons listed in the article should refuse a request for correction that falls outside the scope of the following paragraph.

2- When the defendant requests to correct the other decision;

The case is related to the request to collect property damage suffered due to unfair foreclosure. Follow the debts due to the debtor from the case following the prosecution of the son by the defendant creditor claim that the ration of foreclosures in the workplace, the execution creditor by the court that the defendant was given time to bring the case to the Enforcement Court, and that the warrant is removed by the defendant to avoid prosecution for ration due foreclosed by specifying that the defendant did not use because of charges and stuff stuff trustee to receive requested funds from clear, but subsequently it was given on 16/04/2013 breeding has increased the demand with a petition.

Rectification is one of the exceptions to the prohibition on the expansion and modification of claims and defenses and is defined as the complete or partial correction of a procedural action taken by one of the parties. With rectification, the parties can change the cause of action, the subject of the case or the result of the claim. Complete or partial reclamation of the case is possible provided that there is a duly filed lawsuit.

Changing the cause of action or the subject of the case is completely correctional. (Baki Kuru 4. Skin s. 3990). If it is partially in the reclamation of the case, there is a reclamation of the procedural process after the petition for the case. As is accepted both in the doctrine and in the Supreme Court practices, in the case of increasing the time limit (case value), partial reclamation is in question and in partial reclamation, contrary to complete reclamation, all procedural actions taken up to the date of reclamation are not considered to have been performed. It expresses its provision forward-looking from the date of partial reclamation. The statute of limitations, on the other hand, is not a phenomenon that eliminates debt, but a means of defense that eliminates the desirability of a right that was born and exists. Therefore, the statute of limitations does not eliminate the existence of the receivable, but its desirability. BK 133. in its article, the reasons that cut the statute of limitations are listed, and one of them is the filing of a lawsuit. Since the case has been corrected from the very beginning (since the petition for the case), the statute of limitations has been cut for the part that has been corrected on the date of filing the case.

In a partial case, the statute of limitations is only cut off the part that is being sued. The statute of limitations for the section that has not yet been opened (reserved) and then increased by correction continues to apply.

As a matter of fact, HMK No. 6100, which entered into force on 01/10/2011, has the number 107. vague claims in the case and the plaintiff’s claims determined under Edit in the article on the expansion of the ban, without the consent of the opposite side and the result can be increased in demand without the need for breeding and even accepted that the reasoning in this case the timeout for the item to be trimmed first on the case stated. 109 of the Same Law. in the partial case in the article, there is no explanation that the statute of limitations will be cut.

who served during the preparation of Law No. 6100.. 321 of the Book on Civil Procedural Law according to the Provisions of the Code of Civil Procedure, published by. “In cases where it is possible to file an indefinite receivable claim, filing a partial claim will not be more convenient for the plaintiff for three reasons. Firstly, the statute of limitations for the remaining part of the claimant’s receivable, which filed a partial lawsuit, will not be expired. In contrast, the statute of limitations in an indefinite receivable case will be deemed to have been cut off on the case date for all receivables at the end of the case. Secondly, if the plaintiff who filed a partial lawsuit wants to claim the rest of the receivable during the case, he will be able to do so only with the explicit consent of the reclamation or the counterparty …”with his statements, it is understood that the stable practice of the fact that if a partial lawsuit is filed in the new Code of Civil Procedure, as in the previous case law of both our Apartment and the HGK, only the statute of limitations for the part being sued will be cut is maintained.

Considering the concrete incident in the light of these explanations; It is understood that the unfair action occurred on 18/05/2010, and the confiscated goods were delivered to the plaintiff on 01/10 2010 due to the fact that the ration case was not filed by the defendant creditor.

In this case, the plaintiff’s damage has occurred as of 01/10/2010 and the start date of the statute of limitations must be taken as this date, in which case the BK 60 and TBK 72 as of 16/04/2013, when the reclamation petition was filed. the statute of limitations periods of 1 and 2 years, which are regulated in the article, have expired. Since the defendant is in the statute of limitations for the period against reclamation, it is necessary to decide on his refusal due to the statute of limitations in terms of the section requested by the reclamation, while his acceptance was not considered correct, it is understood that the decision was approved when the decision should have been overturned, the defendant’s attorney’s request for correction of the decision should be accepted, the decision to approve our apartment should be removed, and the decision should be overturned.

Conclusion: 440-442 of the Code of Civil Procedure. in accordance with the articles, for the reasons shown in paragraph (2) above, the defendant’s attorney’s request for correction of the decision was accepted on 12/11/2015 days and 2014/14697 – 2015/12884 to remove the approval decision of our Department numbered 12/11/2015; it was decided by majority vote on 13.06.2016 that the decision would be overturned for the reasons shown above, the defendant’s other decision correction requests would be rejected for the reasons shown in paragraph (1), and the fee received with our approval decision before the defendant requesting decision correction and the decision correction fee received in advance would be returned on request.

VOTE AGAINST

according to HUMK No. 1086, Reclamation is called to completely or partially correct a procedural action taken by one of the parties (m.83)

In our Civil Procedure Law, the texifi principle of claim and defense applies, it cannot be changed without the consent of the other party, so the party who wants to change and expand the claim or defense can apply to a correctional institution.

The subject of reclamation is the procedural treatment carried out, and the party doing so may change the cause of action, the duration and the result of the request. However, the duration cannot be increased and the party cannot be changed (m.87)

However, with the decision of the Constitutional Court dated 20/07/1999, HUMK’s 87th since he canceled his article, now a way has been opened for the judge to increase his sentence in the case through reclamation.

Correction can be carried out until the end of the trial (m.84) Reclamation is carried out with a unilateral and clear statement of will by one party in writing to the court or orally if the other party is ready. The conduct of reclamation does not depend on the admission of the court or the counterparty.

In a lawsuit filed by a plaintiff who does not know the exact amount of receivables and damages or their value, reserving the right to an excess, when the value of the lawsuit exceeds the amount specified in the petition during the trial, the plaintiff will receive this part of HUMK 84. according to its article, it can sue by correcting as much as the result of the trial. This part is not an october case.

The statute of limitations is a def as a legal nature and does not eliminate the debt itself, but it eliminates the right to sue related to the debt.

The case is subject to the statute of limitations provisions at the time it was first filed, and there will no longer be a statute of limitations for the part requested by the reclamation. These described considerations are for cases where it is impossible and objectively impossible to determine the exact and exact amount and value of the creditor’s lawsuit, and not for cases where the amount of the lawsuit is known or can be determined.

In the case petition, the request was made with the rights related to the surplus being reserved; after the expert report, the request was increased as a result of the request by submitting a reclamation petition.

The claim put forward by the plaintiff in the reclamation petition is not a new case, but is in the form of increasing the result of the request in the lawsuit petition. For this reason, the objection to the statute of limitations, which can only be brought against the lawsuit petition, cannot be brought against the reformation. Reclamation is carried out in accordance with Article 176 of the Civil Procedure Code No. 6100, which entered into force on 01/10/2011. and its continuation is regulated in the articles. 177/1 of the aforementioned Law. in its article it is clearly regulated that reclamation can be carried out until the end of the investigation. In this case, the statute of limitations for reclamation cannot be found in the definition. Because reclamation is not a new case, but only an amendment to the petition for a lawsuit.

In practice, over time this part of the plaintiff in the case, the expansion within the Prohibition of one’s own rights contrary to prohibit freedom of Encounter, opening a new case to eliminate exceptions and procedural economy entered legislator effect on 01/10/2011 6100) HMK of 107. it has made it easy to open an “Indefinite receivables and determination case” in the article. In the article “In cases where it is not expected or impossible for him to determine the exact amount or value of the receivable at the time of the opening of the case, the creditor may file an indefinite receivable claim by specifying the legal relationship and a minimum amount or value.”… “as soon as it is possible to determine the exact and exact amount or value of the receivable, the plaintiff can increase the claim that he specified at the beginning of the case without being subject to a ban on expanding the claim.”

Accordingly, the plaintiff will be able to increase the result of the claim without the prohibition of expanding the claim, without the consent of the counterparty and without the need for reclamation. It has been agreed that there will no longer be a statute of limitations for this part to be increased, and the statute of limitations will be cut on the date the case is opened.

For the reasons described, there will be no statute of limitations on reclamation, so I disagree with the majority’s opinion to the contrary. 13/06/2016