09 Apr Missing The Time Of Appeal
Supreme Court 12. Legal Department
PRINCIPAL NO: 2018/47
DECISION NO: 2018/6880
The file related to this work was sent to the office upon the request of the plaintiffs for the appeal examination within the period of the decision made by the District Court Court with the date and number written above, and after hearing the report prepared by the examination Judge for the case file and reading and reviewing all the documents in the file, :
In parallel with the law No. 5235 of 26.9.2004 on the establishment, duties and powers of the courts of First Instance of judicial jurisdiction and the courts of District Courts, the Law No. 5311 of 18.3.2005 amending the provisions of the execution and Bankruptcy Law No. 2004 on appeal and resolution correction and reorganizing the provisions related to appeal and appeal and the provisional 7according to the article, the provisions of Law No. 5311 apply to decisions made after 20.07.2016, when the courts of the district courts take office.
342/3 of the law on Civil Procedure No. 6100. article; ” the petition of Appeal, the identity and signature of the applicant, the decision to be applied enough to carry the records will not be rejected even if there are other matters, 355. the necessary examination is carried out within the framework of the article.”regulation, 355 of the same law. in the article,” the examination is done as limited to the reasons stated in the appeal petition. However, if the District Court considers it to be contrary to public order, it shall ex officio observe” regulation 352/1. it is stated in the article that if the conditions of application are not met or the reasons or reasons for application are not shown at all, the necessary decision will be made.
In the concrete case, the decision made by the court of execution was made to the debtor’s deputy at the hearing dated 03.01.2017, and the debtor’s deputy was referred to in Act 363 of the ICJ. within the period pursuant to article (i.e. day 12.01.2017), HMK’s 342/3. it is observed that the debtor’s attorney did not submit his / her petition containing the grounds for appeal within 10 days, even though the reasoned decision of the court of First Instance was notified on 08.02.2017.
In this case, the work to be done by the District Court is HMK’s 342/3.as stated in Article 355 of HMK, without rejecting the petition of Appeal. it is to conduct limited scrutiny by public order under its clause. If there is not a violation of public order in the decision of the court under review, the decision to reject the appeal will have to be decided on the basis of Article 353/1-b-1 of the HMK, as a review of the merits of the work will be carried out.
In that case, it was found that there was no violation of public order in the decision of the court of First Instance, which was examined by the District Court, even though a petition for a term of Appeal was filed, HMK 353/1-b-1. in accordance with Article 352 of HMK, the request for appeal should be rejected on the basis of the principle. according to the article, the procedural rejection is unattractive.
Result: Gaziantep District Courthouse Court 12. Law Department dated 25/04/2017 and 2017/1116 E. – 2017/1101 K. 364/2 of the ICJ amended by law No. 5311 for the reasons stated above. article 373/2 of HMK No. 6100, which should be applied by submission. it was unanimously decided on 27/06/2018 that there was no place for the appeal appeals to be examined at this stage according to the reason for the annulment, and that the file should be sent to the District Court of Appeals, which made the decision.
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