T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
E. 2017/2-1287
K. 2019/90
T. 7.2.2019
* Shake the unity of marriage due to divorce based on a PROMPT ( notification of the reasoned decision to be written by the trainee lawyer the lawyer lawyer the trainee and it is not void as the employee of the decision and appeals regulations during the period of the parties and witness statements are evaluated together about a criminal case when the defendant was defective, which would give rise to any divorce the man/stand in the denial of the decision of the case requires the breaking of one )

* The notification of TRAINEE LAWYERS ( The Apprentice, However, Written with the lawyer under his supervision and responsibility of the magistrates ‘magistrates’ courts courts and judicial litigation and related proceedings for lawyers and the executive director may enter into their jobs can execute – a lawyer or a trainee lawyer with the relationship between employment contract is not based on a service contract but is a legal relationship )

* UNDUE NOTICE ( the notice of law, trainee lawyer regarded as a permanent employee or a janitor, it does not bear the title of – to be written by the trainee lawyer the lawyer reasoned decision of notification of the decision, as it is not “working” with the title of the regulation is invalid, a trainee lawyer/plaintiff’s attorney was aware of at the date of the notice of Appeal stated that the request is made at the time of the )

* The determination of the offending spouse ( the fight between spouses in the event of the parties mutually to each other due to physical violence and tried to come after you got banned and they understood this event – witness statements, and a criminal case are evaluated together when the defendant would give rise to any divorce in which the man found to be defective/Needed the acceptance of divorce, the woman Plaintiff )

1136 / m.15,23,26,46

4721 / m.166/1,184

6100 / m.255

7201 / m.11,17,32,37

Summary: the case is related to a divorce request based on the reason for shaking up the marital union.

Trainee attorney, however, written with the lawyer under his supervision and responsibility, Magistrates, Magistrates ‘ Courts and courts in judicial litigation and related proceedings for lawyers admitted that the executive director may enter into and execute their jobs; the employment contract with the lawyer or attorney service agreement is based on the relationship between the trainee, but the trainee lawyer is a legal relationship, notification of Law 17. as it is understood that he does not carry the adjective permanent employee or fortified, which is counted in the article; just as the lawyer does not have a written opinion regarding the notification of the reasoned decision to the trainee lawyer, the notification of the decision to the trainee lawyer as “employee” is invalid. As of the date on which the attorney of the plaintiff declared that he was aware of the notification, the appeal against the decision to resist was decided to be overturned and removed by the additional decision of the Local Court.

Although each of the spouses can file for divorce as a rule, the Supreme Court interprets this provision as the fully defective spouse cannot sue if the marriage union has been shaken or shaken at the point where it has been shaken from its foundation to the extent that the common life between the spouses is unbearable.

The plaintiff (the woman) to witness his mother’s marriage are beaten for many years, but folded, being reflected in the courthouse for the last few events,” the other witness “the defendant constantly underestimated and she didn’t want his wife in the house with his wife,” he had declared and took place without sufficient evidence and witnesses to accept as stated is not the case.

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 due to this event of physical violence and tried, 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 they did not come together after this event; mentioned, witness statements, a criminal case are considered together and when the man divorce the defendant because the plaintiff which would give rise to divorce a woman, it is understood that any defective may be required for acceptance. It is necessary to comply with the decision to break the special Circle, which points to the same considerations and is also adopted by the General Council of law, while resisting the previous decision is contrary to the procedure and law and required to break it.

Case: Karacabey 1 as a Family Court at the end of the trial due to the “divorce” case between the parties. 12.07.2012 date and 2011/310 E. given by the Court of First Instance on the dismissal of the case, 2012/403 K. Decision No. 2 of the Supreme Court on appeal of the Attorney General of the plaintiff. Law Department dated 16.04.2013 and 2012/23641 E., 2013/10736 K. by numbered decision;

“On the contrary, unless there is serious and convincing evidence and events, the main thing is that the witnesses have told the truth (6100 P. HMK. Article 255). In itself, kinship or other intimacy cannot be considered a reason for reducing the witness statement from value. There is also not enough evidence and facts to accept that the witnesses in the case expressed as if they had not. In that case, the defendant husband to his wife violence constantly, insult and contempt as witness should be valued very close to the words and events relating to the parties ‘ mutual Criminal Court for acts of violence on each other is also taken into account when the final declaration of the plaintiff’s request should be made with the acceptance of the decision to divorce when the woman, this aspect is kept in mind, as it is written without the provision for the establishment of procedures and is against the law, and has required to break it.”

at the end of the retrial, which was overturned on the grounds and turned down instead of the file, the court resisted the previous decision.

After examining the law by the General Assembly, it was understood that the appeal was given during the period and the documents in the file were read, it was considered necessary:

Decision: the case relates to a request for divorce based on the reason for shaking up the marital union.

The attorney of the plaintiff (woman) claims that the defendant constantly despised and humiliated his client, beat him, that his client did not receive his young daughter from his first wife, even though he committed to adopt her, and that he did not provide material and moral assistance to his client in marrying his daughter, that he did not even attend the wedding, TMK 166/1 of the parties. in accordance with the article, they decided to divorce and asked for a decision to collect from the defendant a measure of us $ 500.00 and alimony for poverty,US $ 20,000,00 for material compensation and US $ 20,000, 00 for moral compensation.

The defendant (male) defended the dismissal of the case.

One of the plaintiff’s witnesses heard by the court is the daughter of the plaintiff from a previous marriage, this witness has problems with the defendant, other plaintiff witnesses are close relatives with the plaintiff, as well as their knowledge and manners do not match the defendant’s witness statements, according to the defendant’s witness statements, there is no livelihood between the parties, in the criminal case they are both tried for mutual acts of injury, except in this latest investigation, the plaintiff does not have a complaint about the defendant for insulting or injuring the defendant., on the grounds that some of the statements of subsistence in the plaintiff’s witness statements are in the past and the parties have reunited, there is no subsistence between the parties that requires divorce, and the TMC has 184. “the judge cannot rule on divorce unless he conscientiously believes in the existence of the case put forward as the cause of divorce” and “the law does not protect anyone from obtaining rights based on his fault.”in accordance with the ruling, the case was decided to be dismissed.

On 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 dismissal of the case by the court was violated by the bet that “a short decision with the qualifications sought by the procedure and a reasoned decision appropriate to it were not established” by the General Assembly of the Supreme Court of law on the appeal of the plaintiff’s deputy.

In addition to the fact that the plaintiff’s testimony in the prosecutor’s office and the testimony he gave in court are different, the statement in the prosecutor’s office in the nature of the confession he gave to his wife said, ” Get Out Of Here., under my feet, I said, and I pushed the back of the neck” shaped attitude and derogatory statement against the defendant when the plaintiff is taken into account it is actually insulting and who is the cause of fighting, faced with such treatment of his wife, the defendant in employing the plaintiff to hit the slap to Turkish traditions whether you are not against the declaration of the plaintiff’s stepfather daughter will not be neutral, again, even though he declared after beating beaten consistently by the plaintiff’s witnesses on the grounds that the decision was given in marriage goes on.

The decision to resist was appealed by the plaintiff’s (female) attorney.

An additional decision issued by the court on the refusal of the appeal on the grounds that the appeal request was not in duration was appealed by the attorney of the plaintiff.

A dispute before the General Assembly of law through resistance; whether the defendant man is defective in the case subject to divorce proceedings, according to the result to be reached here, whether the case filed by the plaintiff woman should be accepted.

During the negotiations held at the General Assembly of law, the question of whether the process of notifying the attorney of the plaintiff of the reasoned decision on resistance before the basis of the work is duly observed, and therefore whether the additional decision on the refusal of the appeal request for a period of 02.07.2014 should be removed was discussed as a preliminary issue.

As is known; notification law No. 7201 11. according to the first sentence of the article; “notification is made to the deputy in the works followed by the Deputy”.

17 of the notification Law No. 7201 entitled “profession and artistic performance in a certain place or home”. references;

”At a certain place in that place are those who practice the fine art vocational or continuous notified the officer and his or her standing in the same place, if not one of those who exercised the officer and his profession or art at home, unless one of the servants and one of the people sitting in the same house is made to” the provision.

26 of the regulation on the application of the notification law entitled “notification to professional and artistic professionals”. in the article;

”Those who constantly perform their profession or art in a particular place may also be notified in that place.

If the interlocutor is not present at the workplace, the notification is made to one of the officers or employees who constantly work in the same place.

If the interlocutor performs his profession or art in his residence, it is done to one of his officers or officials if he is not present. In case none of them are present, the notification is made to the persons who are permanently living in the same residence or to one of their servants.”

Given the current regulations, those who continuously perform their profession or art in a certain place, if they are not 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 who is notified on behalf of the interlocutor is actually a permanent employee of the interlocutor and the interlocutor cannot be found, the notification must be made by performing the procedures specified in the above legislation. Otherwise, the notification is illegal.

In a concrete case, the decision to resist dated 02.07.2014 is the attorney of the plaintiff Av.I.E.”E has been issued a notification, in a piece of notification, “the addressee was asked about the address. G., who works at the same job since he went to the courthouseK.” a notification was made ” on 13.08.2014 with the statement of the notification officer and G.K. notice was made with his signature.

The attorney of the plaintiff filed an appeal 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 subject. ” File document completion ” system with the notification date of whether the person mentioned is a lawyer trainee to investigate the issues written to the relevant court müzekkere, 05.02.2019 dated reply article G.K.he is a lawyer trainee registered with the Bursa Bar Association and has an internship with a lawyer.I.E. (acting plaintiff) was reported to have completed it between 08.04.2014 and 09.10.2014.

In this case, the reasoned decision was made on behalf of the plaintiff’s attorney on 13.08.2014.G.K.it is indisputable that it was communicated to a, and first of all, in terms of solving the preliminary problem, it is necessary to examine whether the notification to the lawyer trainee can be considered a proper and valid notification.

Law No. 4667 of the Law No. 1136 amended by Law No. 23. edited and done internship assignments and intern in the article in the second paragraph of the article “the trainee to enter the trial with the lawyer, the lawyer can do their work in the courts and administrative authorities, case files and edit correspondence, baroca to participate in organized educational activities of the Bar Association and in the regulations issued by the board of Directors shall perform other duties that will be shown. Interns must comply with professional rules and the principles set out in the regulations”.

26 of the same law. in the article “the interns can do things that are” regulated; these “Interns, an internship with a lawyer after I started the supervision and with the written consent of the attorney and his responsibility under the magistrates ‘courts, Magistrates’ Courts and enforcement litigation in the courts and related proceedings for lawyers and the executive director may enter into may undertake their jobs.”it is listed as” and stated in the last paragraph of the article that this authority will end with the issuance of the certificate of completion of the internship or deletion from the list of internships.

Follow-up of work with an intern or Secretary, examination of Case Files and sampling from the file, 46 of the same law.article: lawyer, could have followed under their responsibility with the secretary of the intern or employee; a lawyer or an intern, review the case without a power of attorney, and the following files in this review request must be satisfied that the measure of the power of attorney on file with the instance of a lawyer or who don’t submit the document or a copy of the paper will not be given, arranged in order.

On the other hand, 37 of the notification Law No. 7201 entitled “notification to lawyer clerks and interns”. article ” notification of the day and time of the hearing to the clerks and interns of lawyers whose adjectives have been determined by kazai merci during the hearing is the provision of notification to the lawyer.”includes the arrangement.

19 Of The Law Internship Regulation Of The Turkish Bar Association. in the article, the work that the trainee can do is arranged; in the article, the same;

“After the start of the internship, a trainee lawyer, the lawyer with written under his supervision and responsibility, Magistrates, Magistrates ‘ Courts and enforcement proceedings and related litigation for lawyers in the courts and may conduct the executive director may enter into their jobs.

This authorization ends with the issuance of the certificate of completion of the internship or the deletion of his name from the internship list.

The intern can take samples from the case files by photocopies and similar means with the written consent of the lawyer with whom he is interning.

The intern can also review case and follow-up files without power of attorney or written consent.”the verdict is given.

20 Of The Same Regulation.in the article, the next training the lawyer, and at the end of the first three months will give a report at the end of the internship period, the intern in the internship report and the final report is 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, and stated that similar studies of research applications will be evaluated.

As can be seen, written with the lawyer and trainee lawyer under his supervision is the responsibility, Magistrates, Magistrates ‘ Courts and related proceedings for lawyers and judicial litigation in courts can execute their jobs and it has been accepted that the executive director may enter into.

On the other hand, Law No. 1136 15. in the article, ” the internship as a lawyer is one year. In accordance with 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 this five-year seniority account. the period of time spent in the written Service is also included in the article.) it is done next to a lawyer.” Accordingly, a lawyer’s internship is a legal obligation and is carried out in order to gain professional knowledge and experience. Therefore, the relationship between a lawyer and a trainee lawyer is not based on a business contract or service contract, but is a legal relationship. For this reason, the lawyer trainee is required to comply with the Notification Act 17. it is evident that he does not carry the adjective permanent employee or fortified listed in the article.

In 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, and the notification of the reasoned decision dated 02.07.2014 to the trainee lawyer Gizem Kosar as “employee” is invalid.

However, 32 of the Notification Act. “even if the communique has been duly made, if the interlocutor has been muttali to the communique, it is considered muteber. The date declared by the interlocutor, the date of notification addolunur” in accordance with the provision that the attorney of the plaintiff is aware of the notification as of 15.09.2014 as of 22.09.2014 is during the appeal request period.

For the reasons stated, the additional decision of the Local Court dated 11.11.2014 on the rejection of the plaintiff’s attorney because the appeal request was not in duration was decided by a majority of votes and the preliminary problem was overcome in this way and the appeal of the plaintiff’s attorney for the decision to resist was examined on the basis.

As for the study of the merits of the work;

It is useful to evaluate the relevant legal regulations for Dispute Resolution.

166/I-II of the Turkish Civil Code (TMK) No. 4721 entitled “shaking up the marital union”. references;

“If the marital union is shaken from its foundation to such an extent that they are not expected to maintain a common life, each of the spouses can file for divorce.

In the cases referred to in the above paragraph, if the plaintiff’s defect is more severe, the defendant has the right to appeal the case filed. However, if this objection is an abuse of the right and there is no benefit worth protecting in the care of the defendant and children in the continuation of the marriage union, a divorce may be decided.”

In accordance with the first paragraph of the aforementioned article, two main conditions must have been fulfilled in order to decide on divorce due to the shaking of the basis of the marriage union. First, it is shaken by the foundation of marital unity, and the other is that common life has become unbearable. It granted the judge the right to appreciate whether the Union of marriage has been shaken on many issues that regulate the general reasons for divorce and are not embodied or specified in the details of the provision of the article taken above.

Although each of the spouses can usually file for divorce if the marital union in accordance with this provision is shaken from its foundation to such a degree that makes the common life between the spouses unbearable, the Supreme Court interprets this provision as the fully defective spouse cannot sue. As a matter of fact, according to the similar principle of HGK dated 04.12.2015 and 2014/2-594 E., 2795 K. it was also mentioned in his numbered decision.

If the Union of marriage is shaken from the basis that it cannot be expected of the spouses to maintain a common life, the defendant has the right to appeal the case filed if the plaintiff’s defect is more severe (TMK m. l66 / II).

Although this regulation grants the defendant the right to appeal in this way, the sanction of abuse of this right is stated in the same provision.

Really, TMK. m. l66 / II according to the last sentence, a divorce may be decided if the appeal is an abuse of the right and there is no benefit worth protecting in the care of the defendant and children in the continuation of the marriage union.

It should be immediately noted that 255 of the Code of Civil Procedure 6100. according to the article, unless there is serious and convincing evidence and events to the contrary, the main thing is that the witnesses have told the truth. In itself, kinship or other intimacy cannot be considered a reason for reducing the witness statement from value.

In the light of all these explanations, when the concrete event is evaluated; the plaintiff (woman) is heard as a witness.P.”his mother had been beaten up for years in marriage, but had endured it, the last few events reflected in the courthouse,” said another witness.C. however, he declared that” the defendant constantly underestimated his wife and did not want his wife in the house.” There is not enough evidence and facts in the file to accept that the witnesses expressed as if they had non-existent cases.

On the other hand, in the case of 09.04.2011, Karacabey Magistrates ‘ Court dated 22.06.2011 and 2011/297 E., 2011/884 K. in a fight between spouses, it was understood that the parties mutually inflicted physical violence on each other, that they were tried and punished for this incident, that it was decided to leave the explanation of the sentence given, that the decision was finalized, and that the parties did not meet after this incident.

In this case, when the said witness statements and the criminal file are evaluated together, it is necessary to accept the divorce case of the plaintiff woman, since it is understood that the defendant man is defective in the nature that will lead to the divorce.

In this case, it is against the procedure and the law to resist the previous decision, while it is necessary to comply with the decision to break the special Circle, which points to the same considerations and is also adopted by the General Council of law.

Conclusion: for the reasons described above, the additional decision of the Local Court dated 11.11.2014 on the rejection of the appeal request of the plaintiff’s attorney was overturned by a majority of votes and removed, with the acceptance of the appeals of the plaintiff’s attorney, for the reasons shown in the decision to break the special circle of the decision to resist 30 of the law No. 6217.article 429 of the Code of Civil Procedure No. 1086, which is applied with the attribution of “provisional Article 3” added to the law of Civil Procedure No. 6100. article 440 of the same law. in accordance with the article, a unanimous decision was made on 07.02.2019 to open the way to correct the decision within fifteen days from the notification of the decision.