08 Feb NOTIFICATION TO THE TRAINEE LAWYER- SUPREME COURT DECISION
T.C THE DECISION OF THE SUPREME COURT
GENERAL ASSEMBLY OF LAW
E. 2017/2-1287
K. 2019/90
T. 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. since 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 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.
Although each of the spouses can, as a rule, file for divorce, the Supreme Court interprets this provision as the full defective spouse cannot file a lawsuit if the judge has been given the right to discretion on the point of whether the marriage union is shaken or decayed and the common life between the spouses has been shaken to such an extent as to make the situation unbearable.
The plaintiff (female) witness stated that “her mother was beaten but endured for years in marriage, 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, Karacabey 1 as a Family Court. dec. The date of 12.07.2012 and the date of 2011/310 E, which were 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 re-trial, the court resisted the previous decision by overturning the grounds and reversing the file instead of the previous decision.
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 non-pecuniary compensation, together with the defendant has been decided to collect the defendant by deciding to divorce.
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 decide 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 of anyone to obtain on the basis of his 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 made in the prosecutor’s office, 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 deadline 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;
”At a certain place or are not in place, that those who practice the fine art of continuous vocational notified if the officer or one of his standing in the same place, or profession of those who exercised at home, and his art is one of the officer sitting in the same house, unless one of the servants and people, and is made to” the provision.
26 of the Regulation on the Application of the Notification Law entitled “Notification to professional and artistic education”. and in the article;
”Those who constantly practice their profession or art in a certain place can also be notified at that place.
If the addressee is absent from the workplace, the notification is made to one of the officers or his deputies who constantly work in the same place.
If the interlocutor performs his profession or art at his residence, if he is absent, it is performed by an official or one of his preparations. If there are none of them, the communique is made to people who live permanently in the same residence or to one of their servants,”there is an arrangement.
Considering the current regulations, those who constantly practice their profession or art in a certain place, if they are not located in that place, the notification to be made to them should be made to one of the permanent officers or officials of that person in the same place. In other words, in order for the notification made in the form of a permanent employee of the interlocutor to be valid, if the person notified on behalf of the interlocutor is actually a permanent employee of the interlocutor and the interlocutor cannot be found, it is necessary to make the notification by performing the actions specified in the above legislation. Otherwise, the notification made is invalid.
In the concrete case, the decision to resist dated 02.07.2014 was taken by the acting plaintiff Av.I.E.“the addressee was asked from the address in the notification fragment that was issued to the notification. G., who has been working at the same job since he went to the courthouse.K.on 13.08.2014, the notification officer and G.K. a notification has been made with his signature.
The acting plaintiff is G. In the appeal petition dated 22.09.2014.K.he declared that he was an intern and that he was not aware of the notification process because his intern did not know the importance of the issue. In the article dated 05.02.2019, the answer was written to the relevant court to investigate whether the person named on the date of the notification with the ”File document completion” system is a lawyer intern.K.he completed his internship where he was an intern of a lawyer registered with the Bursa Bar Association and was with a lawyer.I.E. it has been reported that it was completed between 08.04.2014 and 09.10.2014 in addition to (dec plaintiff).
In this case, the reasoned decision was made on behalf of the deputy plaintiff Av, who was an intern on 13.08.2014.G.K.it is indisputable that it has been notified to, and first of all, it is necessary to examine whether the notification to the lawyer’s intern can be considered a duly valid and valid notification in terms of solving the preliminary problem.
23 of the Law No. 1136 on Advocacy as amended by Law No. 4667. the internship and intern assignments done in the article of the article and edited the second paragraph, “the trainee to enter the trial with the lawyer, the lawyer do their work in the courts and administrative authorities, correspondence, case files and edit baroca organized educational activities to participate in, and regulations issued by the board of Directors of the bar association shall perform other duties that will be shown in. Interns must comply with the professional rules and the principles set out in the regulations,”the provision is given.
26 of the same Law again. the article ”The jobs that interns can do“ is regulated; these are “Interns, after starting an internship with a lawyer, with the written consent of the lawyer and under his supervision and responsibility, magistrates, magistrates and executive courts in the cases and jobs followed by the lawyer can enter hearings and carry out the work in the executive offices.” and it is stated in the last paragraph of the article that this authority will end with the issuance of the internship completion document or deletion from the internship list.
46 Of the same Law, if it is the follow-up of works with an intern or secretary, the examination of case files and the sampling of the file.article: lawyer, trainee or employee could have followed through with their responsibility under the secretary of a lawyer or an intern, where the case without a power of attorney and the following files can review this request for review must be satisfied that the measure of the power of attorney on file with a lawyer, who don’t submit the paper or document or a copy of the instance will not be given, are arranged in.
On the other hand, Article 37 of the Notification Law No. 7201 entitled “Notification to Lawyers’ Clerks and Interns”. article “Notification of the day and time of the hearing to the lawyers’ clerks and interns whose adjectives have been determined by the kazai authority during the hearing is subject to the provision of a notification to the lawyer.” it contains the arrangement of.
19 Of the Turkish Bar Association Law Internship Regulation. in the article, the jobs that an intern can do are regulated; in the article, the same;
“After starting an internship with a lawyer, an intern, under the written consent of a lawyer and his supervision and responsibility, can enter hearings related to the cases and work that the lawyer follows in the magistrates, magistrates, criminal courts and executive courts, and perform work in the enforcement offices.
This authorization ends with the issuance of the internship completion certificate or the deletion of the name from the internship list.
An intern can take samples from case files by photocopying and similar means with the written consent of the lawyer he is interning with.
The trainee can also review the case and follow-up files, without power of attorney or written permission.” the provision has been included.
20 of the Same Regulation.in the article, the next training lawyer, and at the end of the first three months will give you a report at the end of the internship period, the intern and the internship report is the final report the final report of the continuation of vocational interest, susceptibility to the principles and rules of the profession, attended hearings, certificate of authenticity with its work, research studies and similar applications will be evaluated, he said.
As can be seen, written under his supervision and responsibility trainee lawyer with the lawyer, magistrate, Magistrates ‘ Courts and judicial proceedings and related litigation in courts for lawyers and the executive director may enter into it has been accepted that can execute their jobs.
On the other hand, Article 15 of the Law No. 1136 on Advocacy. in the article; “The internship of a lawyer is one year. According to the provisions contained in this part of the internship, the first six months are in the courts, and the remaining six months are at least five years of seniority (4 of the Law on the account of this five-year seniority. the periods of service written in the article are also included.) it is said that ”it is done next to a lawyer”. Accordingly, an internship as a lawyer is a legal obligation and is conducted in order to gain professional knowledge and experience. Therefore, the relationship between the lawyer and the trainee lawyer is not based on the employment contract or the service contract, but is a legal relationship. dec. For this reason, the lawyer trainee is required to comply with Article 17 of the Notification Law. it is obvious that he does not carry the title of permanent employee or custodian listed in the article.
In the light of these explanations, there is no written consent of the lawyer regarding the notification of the reasoned decision to the trainee lawyer in the file, as well as the notification of the reasoned decision dated 02.07.2014 to the trainee lawyer Gizem Koşar as an “employee” is invalid.
However, Article 32 of the Notification Law. ”even if the notification is made in violation of the procedure, if the addressee has been muttali to the notification, it is considered muteber. As of 15.09.2014, when the plaintiff’s attorney declares that he is aware of the notification in accordance with the provision ”The date of notification is added to the addressee’s declared date is during the appeal request made on 22.09.2014.
For the reasons indicated, the additional decision of the local court dated October 11, 2014 on the rejection of the claimant’s deputy’s appeal request was not within the deadline and the cancellation was decided by a majority vote, thus overcoming the preliminary problem and proceeding to the substantive examination of the plaintiff’s deputy’s appeal against the decision to resist.
As for the study of the merits of the work;
It is useful to evaluate the relevant legal regulations for resolving the dispute.
166 /I-II of the Turkish Civil Code (TMK) No. 4721 entitled “Shaking up the marriage union”. the substance;
“If the marriage union is shaken from its foundation to such an extent that they are not expected to lead a common life, each of the spouses can file for divorce.
In the cases specified in the above paragraph, if the plaintiff’s defect is more severe, the defendant has the right to appeal the lawsuit filed. However, if this objection is an abuse of the right and there is no benefit worth protecting in terms of the defendant and the children during the continuation of the marriage union, a divorce may be decided”.
In accordance with the first paragraph of this article, in order for a divorce to be decided due to the fact that the marriage union has been shaken from its foundation, two main conditions must have been met. The first is that the foundation of the marriage union has been shaken, the other is that the joint life has become unbearable. The provision of the article regulating the general reasons for divorce and taken above has given the judge the right to assess whether the marriage union has been shaken in many issues that have not been embodied or specified in detail.
In accordance with the provision in question, if the marriage union has been decimated to such an extent as to make the joint life between the spouses unbearable, although each of the spouses can, as a rule, file for divorce, the Supreme Court interprets this provision as the full defective spouse cannot file a lawsuit. As a matter of fact, the HGK dated 04.12.2015 and dated 2014/2-594 E has a similar principle., 2795 k. it was also mentioned in his decision No.
If the marital union has been shaken from its foundation to such an extent that it cannot be expected from the spouses to maintain a common life, the defendant has the right to appeal the lawsuit filed if the plaintiff’s defect is more severe (TMK m. l66/II).
In this regulation, the defendant is granted the right of appeal in this way, but the sanction of the abuse of this right is also stated in the same provision.
Really, TMK. m. l66/II According to the last sentence, if the objection is an abuse of the right and there is no benefit worth protecting in terms of the defendant and the children during the continuation of the marriage union, a divorce may be decided.
It should be noted right away that Article 255 of the Civil Procedure Code No. 6100. in accordance with the article, unless there are serious and convincing evidence and events to the contrary, the main thing is that the witnesses have told the truth. Kinship or other closeness cannot in itself be considered a reason to devalue the witness statement.
Considering the concrete event in the light of all these explanations; N., who was heard as a plaintiff’s (female) witness.Sh., ”her mother had been beaten but endured for years in marriage, and the last few events were reflected in the courthouse”, said the other witness, S.C. he stated that ”the defendant constantly despises his wife and does not want her at home”. There is not enough evidence and facts in the file to accept that the witnesses have stated that they have had cases that they have not.
On the other hand, in the case dated 09.04.2011, the Karacabey Magistrate’s Court dated 22.06.2011 and dated 2011/297 E., 2011/884 K. according to the numbered decision, it was understood that the parties to the fight between the spouses mutually used physical violence against each other, were tried and punished for this incident, it was decided to release the decriminalization of the decriminalization verdict, the decision was finalized, and the parties did not meet after this incident.
In this case, when the aforementioned witness statements and the criminal file are evaluated together, the claimant woman’s divorce case must be accepted because it is understood that the defendant man is defective in a way that will lead to a divorce.
Therefore, while it is necessary to comply with the decision to disrupt the Special Chamber pointing to the same issues and adopted by the General Assembly of the Law, it is contrary to the procedure and the law to resist the previous decision.
Conclusion : for the reasons described above, the Local Court dated 11.11.2014 the additional appeal for the denial of the plaintiff’s attorney is disrupted by a majority vote, the decision request, and to be removed, the plaintiff’s attorney with the acceptance of the appeal the appeal, the decision of a decision to resist the circle shown in Article 30 of law for reasons of private 6217.article 429 of the Code of Civil Procedure No. 1086, which is being applied with the reference to the “Provisional article 3” added to the Code of Civil Procedure No. 6100 with its article. according to article 440 of the same Law, if requested, the refund of the advance appeal fee to the depositor. in accordance with the article, it was unanimously decided on 07.02.2019 that the way to correct the decision would be open within fifteen days from the notification of the decision.
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