THAT THE CASE HAS BEEN FILED AS AN INDEFINITE RECEIVABLE CASE – THAT THE PLAINTIFF CANNOT CHANGE THE TYPE OF CASE AND THEREFORE THE RESULT OF THE CLAIM BY MEANS OF PARTIAL RECTIFICATION – THAT HE CAN ONLY DO THIS BY FULLY RECTIFYING HIS CASE

27 Oct THAT THE CASE HAS BEEN FILED AS AN INDEFINITE RECEIVABLE CASE – THAT THE PLAINTIFF CANNOT CHANGE THE TYPE OF CASE AND THEREFORE THE RESULT OF THE CLAIM BY MEANS OF PARTIAL RECTIFICATION – THAT HE CAN ONLY DO THIS BY FULLY RECTIFYING HIS CASE

T.C. SUPREME COURT

22.law office
Base: 2015/10805
Decision: 2016/17961
Date of Decision: 16.06.2016

CASE OF WORKERS’ RECEIVABLES – THE CASE IS FILED AS AN INDEFINITE RECEIVABLES CASE – THE PLAINTIFF CANNOT CHANGE THE TYPE OF CASE AND THEREFORE THE RESULT OF THE CLAIM BY MEANS OF PARTIAL RECTIFICATION – HE CAN ONLY DO THIS BY FULLY RECTIFYING HIS CASE – VIOLATION OF THE PROVISION

ABSTRACT: The case has been opened as an indefinite receivables case. During the continuation of the trial, the plaintiff partially corrected his case by increasing the amounts of receivables he requested. In addition, with the mentioned partial reclamation petition, it has also changed the type of case to a partial case. As of the petition for reclamation by the court, the case has been accepted as a partial case. In this case, the plaintiff could not change the type of case and therefore the result of the claim by means of partial rectification, and this required that the provision be erroneous and overturned in writing without taking into account that he could only do so by fully rectifying his case.

(6100 pp. K. m. 141, 176, 319)

Case and Decision: Summary of the plaintiff’s request: The plaintiff’s deputy stated that the case was an indefinite receivable case and requested that his client work at the defendant’s hospital workplace between dec6.03.2005 and 25.02.2013, terminate the employment contract due to retirement, and receive severance pay, annual paid leave, overtime and general vacation.

Summary of respondent’s response: The defendant’s deputy Ministry of Health argued that since there is no employment contract or contract between the plaintiff and the respondent administration, the decease of the case should be decided by declaring that no hostility can be directed to the administration.

Summary of the court’s decision: The court decided to partially accept the case on written grounds in accordance with the evidence collected and the expert report received.

Appeal: The decision has been appealed by the defendant’s deputy within the time limit.

Justification: Article 319 of the Code of Civil Procedure No. 6100. in accordance with the article, in cases where a simple trial procedure is applied, there is a ban on expanding or changing the claim and defense, and (unless the counterparty has explicit consent) both parties, as a rule, cannot change the procedural actions they have taken after a certain stage of the case, as a rule.

the institution of “reclamation”, regulated by Articles 176 and the continuation of the Code of Civil Procedure No. 6100, is one of the exceptions to this prohibition (m. 141,2)

As is known, rectification is a way that allows one of the parties to partially or completely correct a procedural transaction, one-time, and does not require the approval of the counterparty.

In the teaching, reclamation is defined as a complete or partial correction of the procedural operation performed by one of the parties, similar to the above definition. (KURU, Baki, The Procedure of Civil Procedure, Volume:IV, Istanbul 2001, p. 3965; ALANGOYA/YILDIRIM/DEREN YILDIRIM, Principles of Civil Procedure Law, Istanbul 2009, p.266; PEKCANITEZ/ATALAY/ÖZEKES, Civil Procedure Law, Ankara 2009, p.361; ÜSTÜNDAĞ, Civil Trial Law, Vol: I-II, Istanbul 1997, p.549; BILGEN, Mahmut, Islah in Civil Proceedings, Ankara 2010, p.definitions and authors quoted in 1; YILMAZ, Ejder, Reclamation in Civil Trial Law, Ankara 2010, p.definitions and authors quoted in 49-50).

The case is completely correctable. It is the plaintiff who can fully rectify the case. In full reclamation, the plaintiff corrects his case from the very beginning (from the petition for a lawsuit) and files a new petition for a lawsuit. The plaintiff can change the result of the claim by completely correcting his case. For example, the plaintiff can completely change the compensation case by reclamation as a registration case, change the ecrimisil (receivable) case as a case of preventing interference (confiscation), change the title deed cancellation case as a case of revocation of the inheritance order (certificate of inheritance).

In contrast, the reclamation applied for the extension or partial modification of the result of the claim or the cause of action is not a complete reclamation, but a partial reclamation.(KURU, Baki, The Procedure of Civil Procedure, Volume:IV, Istanbul 2001, p. 3965)

In the concrete case, the case was filed as an indefinite receivable case. During the continuation of the trial, the plaintiff partially corrected his case by increasing the amounts of receivables he requested. In addition, with the mentioned partial reclamation petition, it has also changed the type of case to a partial case. As of the petition for reclamation by the court, the case has been accepted as a partial case. In this case, the plaintiff could not change the type of case and therefore the result of the claim by means of partial rectification, and this required that the provision be erroneous and overturned in writing without taking into account that he could only do so by fully rectifying his case.

Conclusion: It was unanimously decided on 16.06.2016 that the appealed decision should be OVERTURNED for the reason written above, and that the appeal fee received in advance should be returned to the relevant person upon request.