15 Feb NOTIFICATION TO THE TRAINEE LAWYER
T.C. THE DECISION OF THE SUPREME COURT
GENERAL ASSEMBLY OF LAW
B. 2017/2-1287
D. 2019/90
Date. 7.2.2019
* DIVORCE REQUEST BASED ON THE REASON FOR THE SHAKING OF THE MARRIAGE UNION ( The Lawyer has No Written Confirmation of the Notification of the Reasoned Decision to the Trainee Lawyer, and the Notification of the Decision to the Trainee Lawyer as an Employee is Invalid And the Appeal is Pending – The Defendant Man is Defective Enough to Cause a Divorce When the Witness Statements and the Criminal File about the Parties are Evaluated Together / The Refusal of the Case Requires a Decision to Be Overturned)
* The notification of TRAINEE LAWYERS ( The Apprentice, However, written under the supervision and responsibility with his lawyer Magistrates ‘Magistrates’ Courts and judicial proceedings and related litigation in courts and the executive director may enter into, execute their jobs for lawyers – can a trainee lawyer with a lawyer or a service contract is not based on the relationship between employment contract, but is a legal relationship )
* IRREGULAR NOTIFICATION (The Lawyer Intern Does Not Bear the Title of Permanent Employee or Custodian Listed in the Notification Law – The Lawyer Has No Written Confirmation of the Reasoned Decision to the Trainee Lawyer, As Well as the Decision That the Notification to the Trainee Lawyer as an “Employee” Is Invalid / The Appeal Request Made As of the Date When the Plaintiff’s Attorney Declares That He Is Aware of the Notification Is Valid)
* The determination of the offending spouse ( the fight between spouses in the event the parties mutually to each other and you got banned due to physical violence, they understood and tried to come after this event, witness statements, and are evaluated together when a criminal case, the defendant found to be defective, which would give rise to any man divorce/divorce is the plaintiff required the acceptance of the woman )
1136/m.15,23,26,46
4721/m.166/1,184
6100/m.255
7201/m.11,17,32,37
ABSTRACT : The case is related to the request for divorce based on the reason for the shaking of the marriage union.
Trainee attorney, however, written under the supervision and responsibility with his lawyer, Magistrates, Magistrates ‘ Courts and judicial proceedings and related litigation in courts for lawyers accepted that the executive director may enter into and can execute their jobs; the relationship between the trainee lawyer with the lawyer is not based on the employment contract or service agreement, but a trainee lawyer is a legal relationship, the notification of the law 17. as it is understood that he does not carry the title of permanent employee or custodian listed in the article; the lawyer does not have a written notice of the notification of the reasoned decision to the trainee lawyer, as well as the notification of the decision to the trainee lawyer in the capacity of “employee” is invalid. Since the appeal request made as of the date when the plaintiff’s attorney declared that he was aware of the notification was in the process, it was decided to overturn the october decision of the local court and remove it, and the appeal against the decision to resist was moved to the main review.
The unity of marriage is shaken, shaken not at the point where the judge granted the right to exercise discretion joint between the spouses, and life unbearable self-empowerment is shaken from the foundation, if each of the spouses, as a rule, although it may file for divorce, the Supreme Court is interpreting this provision is defective in the case of the wife full inappropriately shaped.
The plaintiff (female) witness stated that ”her mother was beaten for many years in marriage, but endured it, the last few events were reflected in the courthouse“, while the other witness stated that ”the defendant constantly despises his wife and does not want his wife at home”, and there is not enough evidence and facts to accept that the witnesses expressed as if they had cases that did not exist.
On the other hand, Magistrates ‘ Court, with the decision in the fight between the spouses, the parties mutually to each other, they receive a penalty of tried and physical violence due to this event, given the announcement of the judgment of conviction to be turned back to where the decision is made, the decision is final and the parties understood that they did not come together after this event; it is mentioned, witness statements, and are considered together when a criminal case, the defendant may be defective, which would give rise to any man divorce divorce a woman because it is understood that the plaintiff required for acceptance. While the decision to overturn the Special Chamber pointing to the same issues and adopted by the General Assembly of the Law should be followed, resisting the previous decision is contrary to the procedure and the law and required to overturn.
CASE: At the end of the trial held due to the “divorce” case between the parties, Kar Decabey 1 as a Family Court. The date of 12.07.2012 and the date of 2011/310 E, issued by the Court of First Instance on the refusal of the case., 2012/403 K. decision No. 2 of the Court of Cassation on the appeal of the plaintiff’s deputy. The date of 16.04.2013 and the date of 2012/23641 E of the Legal Department., 2013/10736 K. by his numbered decision;
“On the contrary, unless there are serious and convincing evidence and events, the main thing is that the witnesses have told the truth (6100 p. HMK. article 255). Kinship or other closeness cannot in itself be considered a reason to devalue the witness statement. There is also insufficient evidence and facts to accept that there were no witnesses in the case. In that case, the defendant husband to his wife, perpetual violence, insult and contempt should be valued as very close to the words of witness and events relating to the parties ‘ mutual acts of violence for each other is also taken into account when the final declaration of the Criminal Court, the plaintiff should be made with the acceptance of the decision to divorce when the woman’s request, this aspect is kept in mind, without the provision for the establishment of procedures and is against the law as it is written, and it has required me to break.”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and returning the file to its place.
After the law was examined by the General Assembly and it was understood that the appeal was granted during the period and the documents in the file were read, it was considered necessary:
VERDICT : The case is related to the request for divorce based on the reason for the shaking of the marriage union.
The plaintiff (women’s) counsel, the defendant, his client is constantly abused and humiliated, beaten up, the little girl he did not undertake foster care even though your client first wife when you’re marrying the daughter of his client, did not provide material and spiritual aid, and did not even attend the wedding of 166/1 by arguing that the TMC. in accordance with article 500.00 of the injunction and poverty support, financial compensation of TL 20,000.00 and interest of TL 20,000.00 of non-pecuniary compensation, as well as a decision to collect from the defendant has been made by deciding on their divorce in accordance with article 20,000.00.
The defendant (male) has defended the dismissal of the case.
Listened to by the court-is her daughter from her previous marriage of one of the plaintiff’s plaintiff’s witnesses, that there are problems with this witness, the defendant, the plaintiff of the plaintiff’s witnesses in addition to other close relatives with knowledge and experience do not agree with the witness statements of the defendant, the defendant’s witness statement, according to an incompatibility between the parties is not in criminal cases they have been judged because of the actions of the mutual mutilation of both, this is the last of the investigation in the manner I have stated outside of the plaintiff’s witnesses for the plaintiff, the defendant insult or injury, the act because of the absence of a complaint, on the grounds that some of the expressions of decency mentioned in the plaintiff’s witness statements are in the past and the parties have reunited, there is no decency between the parties that would require divorce, and TMK 184. the provision contained in the article “The judge cannot rule on a divorce unless he is convinced in good conscience of the existence of the case put forward as the reason for the divorce” and “the law does not protect the right to obtain on the basis of no one’s fault.” in accordance with the provision, it was decided to dismiss the case.
Upon the appeal of the plaintiff’s attorney, the decision was overturned by the Special Department on the grounds described in the title section above.
The decision to resist the refusal of the case by the court was overturned by the General Assembly of the Supreme Court of Law on the appeal of the plaintiff’s deputy “because a short decision with the qualities required by the procedure and a reasoned decision in accordance with it were not created” by the bet.
In accordance with the decision of the Local Court to decry the General Assembly of the Supreme Court of Law, previous quarrels between the parties cannot be the subject of litigation, the subject of the criminal case cited in the case should be focused on who started the fight and humiliated the person in the last incident, in addition to the fact that the plaintiff’s statement in the prosecutor’s office and the statement he gave in court are different, in the confession statement he gave in the prosecutor’s office, he told his wife, “Get out of here, I said under my feet, and I pushed the back of the neck” shaped derogatory statement against the defendant is taken into account when actually fighting and insulting attitude and who is the cause of the plaintiff is faced with such a treatment of his wife, the defendant hit the plaintiff, whether or not you are employing slap in the Turkish tradition, the plaintiff’s daughter will not be the stepfather of the declaration of neutral against that, again, is consistently beaten by the plaintiff’s witnesses, even though he declared after beating goes on in marriage on the grounds that the decision was given.
The decision to resist was appealed by the deputy plaintiff (woman).
The additional decision on the refusal of the appeal request by the court on the grounds that the appeal request is not within the time limit has been october by the deputy plaintiff.
The dispute that comes before the General Assembly of Law through resistance is to the point of whether the defendant man is defective in the event that is the subject of a divorce case, and whether the case filed by the plaintiff woman should be accepted according to the conclusion to be reached here.
During the negotiations held at the General Assembly of the Law, it was discussed as a preliminary issue whether the procedure for notifying the plaintiff’s deputy of the reasoned decision on resisting before proceeding to the merits of the work is in accordance with the procedure, and therefore whether it is necessary to remove the additional decision dated October 02, 2014 on the refusal of the appeal from the deadline.
As is known; Article 11 of the Notification Law No. 7201. according to the first sentence of the article; “Notification is made to the deputy in cases that are followed by proxy”.
17 Of the Notification Law No. 7201 entitled “Profession and art performance in a certain place or at home”. in the article;
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