T.C. SUPREME COURT

8.law office

 

Base: 2013/223

Decision: 2013/9173

Date of Decision: 13.06.2013

 

CASE OF CANCELLATION OF THE APPEAL – FOLLOW-UP INITIATED DUE TO RECEIVABLES ARISING FROM THE LIQUIDATION OF THE GOODS REGIME – WITHDRAWAL OF ALL THE MONEY IN THE BANK ACCOUNT BY ONE OF THE JOINT ACCOUNT HOLDERS ALONE – ACCEPTANCE OF THE CASE AT HALF RATE – VIOLATION OF THE PROVISION

 

SUMMARY: On 9.6.2003, when the divorce case was filed and the goods regime ended, all the money was available in the account, taken about three months before 3.7.2003, when the divorce decision was finalized and the marriage ended … The fact that the euro was spent on the needs of the house in such a short period of time does not correspond to the usual flow of life and is unacceptable. According to these statements, it was not right to decide on a complete refusal by making a mistake, while 20% (twenty percent) executive denial compensation should be decided, since there is a certain (certain) amount that will be taken to continue the cancellation of the appeal with a half-acceptance of the case (request).

 

(2004 P. K. m. 67) (6100 p. K. m. 23, 33) (1086 P. K. m. 25) (4721 p. K. m. 688) (13. HD. 24.03.2008 T. 2007/14801 E. 2008/4078 K.)

 

Case: C. B. with H. (B.) I. bakırköy 6 regarding the decommissioning of the appeal between them (arising from the receipt of contributions) and the rejection of the case. 29.12.2010 days and 150/1066 of the decision issued by the Family Court, the Supreme Court’s examination was requested by the plaintiff’s deputy during the period; the file was examined, the need was considered:

 

Verdict: Plaintiff C. B. Tekstilbank 52.168 Kayseri deputy in the joint account at the branch,the defendant was taken by the wife of 17 euro, this money is created by the accumulation of the client within the Union of marriage, started enforcement proceedings against the defendant if the defendant had stopped monitoring the execution of the divorced spouse follow up on objection on the grounds that the appeal and the defendant continued to follow up on the withdrawal of 40% of the executive has asked that we be given not less than to pay compensation for denial.

 

Defendant H. B. I. his deputy argued for the decision to dismiss the case.

 

The court decided to dismiss the case on the grounds that both parties have the right to withdraw the money alone, where the bank account is joint between the plaintiff and the defendant, and 40% of the enforcement denial compensation is decoupled from the plaintiff and paid to the defendant. It was appealed by the acting plaintiff during the term of the judgment.

 

It is up to the judge to explain the events, make a legal qualification for the parties and determine the article of the law to be applied (H. 6100.M.K.nun 33 m.). According to the way the claim is put forward; in the case, the deputy plaintiff has filed a formal objection to the enforcement proceedings initiated against the defendant (debtor) due to the receivables arising from the liquidation of the property regime.I.K.nun 67. he requested its cancellation in accordance with the article.

 

The parties were married on 14.9.1990. they were divorced when the provision on the acceptance of the divorce case filed on 9.6.2003 was finalized on 3.7.2003. The bank account at Tekstilbank Kayseri Branch of the 52.168.17 Euro follow-up was opened as a <joint account> by the plaintiff and the defendant on 24.12.2001, and the said account was closed by the defendant on 10.4.2003 by withdrawing money. According to the agreement concluded with the bank for opening an account and the sample of which is in the dec, the opened account is joint, in which both are authorized to withdraw money together or separately, but; it is fixed within the scope of the contract, where the responsibility is joint and severally. The bank’s provision does not specify the share between the parties. dec. In such cases, T.M.K.nun 688/2. the provision of the paragraph should be taken into account. 2 Of the said article. according to paragraph <unless otherwise determined, the shares are considered equal> in accordance with the provision that the share is not specified, it should be assumed that such joint bank accounts are at a half rate. This is also the practice of the Supreme Court and our department. It is necessary to accept that the plaintiff and the defendant made the necessary sharing in the joint bank account that they opened of their own free will during the continuation of the marriage union in accordance with this ratio by agreeing. The fact that all the money in the bank account is withdrawn by one of the joint account holders alone does not mean that all the money has been donated to that account holder or belongs to him.

 

In addition, all the money was available in the account on 9.6.2003, when the divorce case was filed and the goods regime ended, and the fact that 54.341 euros withdrawn about 3 months before 3.7.2003, when the divorce decision was finalized and the marriage ended, was spent on the needs of the house in such a short period of time does not correspond to the usual flow of life and is unacceptable. According to these statements, there is a certain amount of liquidity (certain-certain) that will be received in the continuation of the appeal’s cancellation with the acceptance of the case (request) at a half rate.I.K.nun 67/2. according to the paragraph, 20% (twenty percent) of executive denial compensation should be decided, but it was not correct to make a mistake and decide to completely reject it on written grounds.

 

On the other hand, the Supreme Court 13. HD has a date of 24.3.2008 and a date of 2007/14801 E., By Decision No. 2008/4078; <… due to the finalization of the decision that the court charged with the liquidation of goods acquired within the marriage union is not the Court of First Instance, but the Family Court …> on the grounds that the claim is intended for the liquidation of H.M.K.nun 23/2. article (h.U.M.K.it is binding on the Local Court in accordance with Article 25 / son).

 

Conclusion: For all these reasons, the decision of the Local Court No. 6100, which is considered contrary to the procedure and law, on the acceptance of appeals heard on the spot by the plaintiff’s deputy, is considered to be contrary to the procedure and law.M.K.Temporary 3. article H. No. 1086, which will be applied by sendingU.M.K.nun 428. in accordance with article H.U.M.K.nun 388/4. (H.M.K.m.297/o) and H.U.M.K.in accordance with Articles 440 / I of the law, it was decided by a majority vote on 13.06.2013 that a request for correction of the decision may be made within 15 days from the notification of the Supreme Court of Appeal, if an advance fee of 18.40 TL is requested, the plaintiff may be returned.

 

VOTE AGAINST

 

Plaintiff C. B. summarizing the fee in the completed lawsuit petition; <… Bağcılar 1. 2003/2536 the saved file with the Executive Directorate on the basis of enforcement proceedings against the defendant what he did with paperwork 48 ilamsiz the sample, however, the debtor (defendant) because of the objections of the pursuit that had stopped, essentially, despite their accumulation of money to his wife opened a joint account because of the trust, however, explained by abusing the trust of the defendant and therefore the withdrawal of the appeal by the court of first instance within the period to appeal to the continuation of the monitoring, the defendant against 40% not less than to deny to govern executive compensation, he requested and sued that the costs of the trial be left to the defendant and that a decision be made.

 

Defendant in the petition dated 14.5.2004 money order; this objection also found in the statement of abstract principles; < externally of the parties agreed before the divorce… which are common passenger cars, motorcycles, he was released on dowry goods of the plaintiff, would the money in the joint account to her ozgulendi, the lawsuit you don’t agree with…> defended.

 

In the first decision of the court dated 30.3.2007: on the appeal of the plaintiff’s deputy, where it was decided to dismiss the case that could not be proven, the Supreme Court 13. 24.3.2008 date of the law department, 2007/14801 based on the decision of the decision as written in 2008/4078 <… considering the claim filed by the defendant and the money was taken within the Union of marriage is intended for the liquidation of assets, it is understood that the family court is tasked with looking into the case because of the court who is considering resen issues and the task is taken into account, since the decision of the local court without examining other aspects of> Bakırköy 11. On 23.12.2008, the Court of First Instance complied with the decision to overturn it and decided to dismiss it. Upon finalization of the decision, the file was sent to the Family court. In summary, in the decision dated 29.12.2010; It was decided to reject the case for cancellation of the appeal, to take the amount of 40% of the receivable from the plaintiff as compensation for denial of execution and give it to the defendant. It was appealed by the deputy plaintiff for the written reasons in his petition within the period of the sentence.

 

The evidence collected is from the entire file; by the creditor (plaintiff) deputy on September 10, 2003, Bağcılar 1. In the execution follow-up file registered by the Enforcement Directorate on the basis of 2003/2536, a sample of 48 execution proceedings were conducted against the defendant (debtor) with an example of 10% legal interest for a total of 54,341 euros of receivables, etc., with an example of 48 documents. The debtor (defendant) filed a petition <objection to the debt> with the Erdemli Enforcement Directorate dated 22.9.2003. In addition, the creditor (plaintiff) requested that the continuation of the proceedings be ruled against the defendant with the cancellation of the appeal against the enforcement proceedings, not less than 40% of the enforcement denial compensation, as he clearly stated in his petition during the proxy period and specified the result in the claims section. The court conducted proceedings in the general provisions department and, as explained above, decided on 30.3.2007 to dismiss the case for the cancellation of the appeal, which could not be proven, on 30.3.2007.

 

As it stands, the Supreme Court is the 13th. The Legal Department opened the case with the above-mentioned decision to overturn the T.M.K.202 et seq. he called it a case for the liquidation of the property regime in accordance with the articles and explained that the issue of duty should be formally considered because it is related to public order. However, the local court complied with the decision to overturn the decision. According to the practices of the Supreme Court, by complying with the decree on annulment, the parties have established a procedural vested right in favor of and against them. However, the case at hand is not a case for the liquidation of the goods regime, as it was originally filed correctly. It is a type of lawsuit for the cancellation of an appeal and compensation for denial of execution due to a temporary objection to unauthorized enforcement proceedings. In fact, while it is correct that this case is conducted according to the general provisions and decided as written in the first decision, and within 10 years from the date of filing the divorce case, it is possible to file any case seeking the liquidation of the property regime with the Family Court, the Supreme Court 13. If the mentioned decision of the Legal Department is contrary to the procedure and the law, it has established a procedural vested right by complying with it.

 

Apart from all this, H.U.M.K.nos. 74 and 76. according to its clauses, H.M.K.nun 33. in accordance with the article, it is up to the judge to legally qualify the parties to report the events. Although the meaning of this general and legal rule has been left to the courts due to the fact that the request in the petition has not been clearly explained or understood, the request in a specific case is within the time limit due to a timely appeal to enforcement proceedings and in accordance with the general provisions of I.I.K.nun 67. it is a case of cancellation of an appeal filed in accordance with the article. For these reasons, H.U.M.K.Nos. 74, 76, and H.M.K.nun 33. according to the article, there is no need to make any other qualification. In addition to all this, as written in the majority opinion, the parties were married on 14.9.1990, in accordance with the decision of the Sarioglan Court of First Instance dated 19.6.2003, 2003/75-75 Basis and Decision M.K.nun 166/1. in accordance with the article, it has been decided that the divorce case filed by the plaintiff Handan Bal will be accepted and the parties will be divorced. This decision was finalized on 3.7.2003 without applying for legal remedies. According to the response from Tekstilbank, where there is a common account available in the file, a joint account has been opened on behalf of the parties, one of the parties from the common account has the right to close the entire account without notifying the other, and the joint and collective responsibility belongs to them. Conflict, with marriage, the Union of the money in the account while continuing to public due to the closure of the entire Neman taken by the defendant and the defendant’s account at the time of the plaintiff’s objection ilamsiz enforcement proceedings opened in accordance with the general provisions as a result of the withdrawal of the appeal, the case can be regarded as a sort of settlement of property was described as a settlement of property to be seen whether or when this was taken since it is undisputed that the money by the defendant to the plaintiff in the amount are granted on whether the rate of money is collected. Investigation of all income of the parties taking into account the date of opening of the account, since the transaction was made according to the scope of the disclosure statement of the TMK.nos. 152 and 170. in particular, when considering the plaintiff’s statement that he/she has opened an account due to trust in his/her spouse> in accordance with the plaintiff’s explicit statement in the lawsuit petition and other subsequent petitions, it is necessary to accept that 1/2 share has been given to his/her spouse (a secret donation). For the remaining 1/2 share, it is mandatory to conduct research and inspections for the liquidation of the goods regime without fail. Since the case is being conducted as a liquidation of the goods regime in accordance with the annulment rule, in this case, there is no need to cancel the appeal, continue the proceedings, and award 20% executive denial compensation. Moreover, the defendant’s father in the beginning stages of marriage between the plaintiff dated 30.11.1990 made externally of personal property included in the agreement under contract, which is written according to an external during a divorce, the plaintiff was left in the absence of any objections to these requests and the plaintiff in the trial stages is taken into account that an arrangement exists when external 30.11.1990 dated bonds, with seven of these goods remains in the responsibility of the plaintiff in the case of the plaintiff resides, and so is the subject of the money in your bank account in response to the acceptance that the plaintiff was required.

 

For all these reasons that I have explained, it has not been possible for me to agree with the views of the majority of the Apartment, which are manifested in the form of definite distortion. For the reasons I have stated and for the amount other than the hidden donation, T.M.K.No. 202. et al. in accordance with articles 152. and 170. I believe that it is necessary to disrupt the research taking into account the articles. 13.6.2013

 

I No. 2004, which entered into force on 30.1.2004, when the case for the cancellation of the appeal was filed.I.K.nun 67/2. according to the provisions; in that case injustice, if it is decided to the objection of debtor, if the debtor is viewed in the pursuit unfair and malicious, the creditor upon the request of the other party, both parties in the state, and depending on the patience of the case, perform, red or amount imposed will be down by forty percent, if not sentenced to an appropriate compensation.> The compensation rate in the article of the said law is determined by Article 11 of the Law No. 6352, which entered into force on 2.7.2012. it has been changed by article twenty per cent.

 

Each case (follow-up) is resolved according to the circumstances at the time of its opening. One of the primary principles of the rule of law is that the person or persons taking legal action should know what they will gain and lose at the end of this process according to the current laws. In other words, not knowing the law is not an excuse for not knowing the law, a new situation cannot be created in favor of the other party in such a way as to be against the other party with subsequent legal changes, except in cases that require the public interest, there is no room for coincidences, surprises in the rule of law. Applicants for legal remedies should make a decision by researching and studying the current regulations.

 

In the concrete case, I believe that it is not right for the denial compensation, which should be applied as forty percent according to the legal regulation in force as of the date of filing the appeal cancellation case, to be decided as twenty percent by the majority in the decision to overturn it. I fully agree with the majority’s view of corruption other than the above-mentioned issues. 13.06.2013 (¤¤)

 

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