T.C. SUPREME
13.Legal Department

Basis: 2015/7350
Decision: 2015/31650
Decision Date: 03.11.2015

CREDIT CASE – THE COURT MUST FIRST EXAMINE AND EVALUATE ALL THE REASONS FOR DISMISSAL REPORTED BY THE DEFENDANTS, INCLUDING THE STAGE OF THE HEARING, AND MAKE A DECISION BASED ON THE RESULT-INCOMPLETE AND INCORRECT ASSESSMENT

Abstract: the court should first examine and evaluate all the reasons for dismissal reported by the defendants, including the stage of the hearing in the Supreme Court and make a decision according to the result, while the provision was established with incomplete and incorrect evaluations is contrary to the procedure and law and requires to be overturned.

(6098 P. K. m. 505, 506, 512) (818 P. K. m. 389) (1136 P. K. m. 34, 174)

Case and decision: at the end of the trial of the claim case between the parties, the respondent of the provision given for partial acceptance and partial rejection of the case for reasons written in the declaration A.. P.. his lawyer had sent a summons paper to the interested parties after the hearing was appealed. The defendant who appealed on a certain day A.. A.. P.. and acting attorney S.. K.., other defendant Nobles N.. Y.., K.. T.. with M. Attorney plaintiff attorney. M.. Che..after hearing the oral statements of the lawyers present, the trial was started and the verdict was left for another day. This time, it was determined that the appeal was in due course, and the file was examined, and the need was discussed and considered.

The plaintiff is one of the defendants.. P.., N.. Y.. and R.. Y..as deputy of Bursa 1.2011/418 basis of the Court of First Instance and Bursa 6.The Court of First Instance follows the files No. 2010/382, the decisions made were upheld by the Supreme Court, Bursa 9.Executive Directorate 2012/6559 and 2012/7223 through the main files initiated a follow-up, but at this time dismissed from power of attorney, defendants A.. P.., N.. Y.. and R.. Y..from both the lawsuit and the executive power of attorney, the other defendant K.. T..Bursa 9 from the point of view of all defendants, without prejudice to their rights to excess, claiming that he is only responsible for the executive power of attorney fee, as well as the follow-up costs for both executive files were incurred by him. For both files of the Executive Directorate,a total of 11,991. 00 TL executive power of attorney fee.. T.. a total of TL 5.560.00 in terms of defendants,and TL 5.660. 00 in terms of the case,the counterparty asked for a decision to collect the attorney’s fee together with the legal interest, with a request for reclamation,it increased its request to TL 49.391. 07.

Defendants, plaintiff lawyer Bursa 1. 2011/418 of the Court of First Instance and Bursa 6. In the 2010/382 basic files of the Court of First Instance, the defendants are K.. T..although he was not a lawyer, he sided with other defendants without written instructions.. T..they also asked for the dismissal of the case, arguing that the plaintiff did not attend the hearings of the ecrimisil case, nor did he attend the hearing in the Supreme Court at the appeal stage, and that the lawyer who was rightly dismissed could not charge a fee.

“In particular, the plaintiff’s failure to attend the hearing in the Supreme Court has been suggested as a justified reason for dismissal, the prosecution of cases in the Supreme Court requires a separate fee, so this statement is not respected, the reason for dismissal is also not specified in the dismissals, the guarantee that you will receive in the enforcement files, the dismissals that occurred after the approval decisions given by the Supreme Court are not justified, the plaintiff’s lawyer is entitled to a full fee,” the court said, partially accepting the case,US $ 6,719. 85. P..from, £ 6,719. 85 defendant N.. Y..from, £ 2,479. 60 the defendant R.. Y..from, £ 6,410. 62 defendant K.. T..from the date of the case, the collection along with the legal interest to be processed, the request for excess was decided to be rejected, the provision was appealed by the defendants.

1-debts of a lawyer as a surrogate 505 of the Turkish Code of Obligations. (389 of the Code of obligations to property) and its continuation are shown in articles, surrogate, 506 of the said Law. according to the article, he is obliged to perform power of attorney against his client with loyalty and care. As a requirement of loyalty debt, the surrogate is obliged to engage in behavior that will benefit his client and to avoid behavior that will harm him.

34 of the law on lawyers” debt of care”. “lawyers are obliged to perform their duties with care, accuracy and honor in a manner befitting the sanctity of this duty and to act in a manner befitting the respect and trust required by the title of lawyer.”since the legal profession is a public service, the provision in the form of 506 of the Turkish Code of Obligations. (390 Of The Mülga Code Of Obligations.) is a much more comprehensive and special arrangement than the duty of care of the deputy organized in the article.

Accordingly, the lawyer must carefully avoid attitudes and behaviors that will cause his client’s confidence to be shaken, as well as carry out and conclude the work he receives with care and for the benefit of his client. Otherwise, if a client who does not trust his lawyer dismisses his lawyer, he must accept that the azlin is right. Indeed, if the lawyer has not shown the necessary care and attention in performing his duty and has not faithfully performed the power of attorney, the attorney of his client is right to be dismissed.

Law Of Attorney, 174. “if the lawyer is dismissed, the full fee is given. So far, if the lawyer has been dismissed for defect or negligence, the fee does not have to be paid.” the provision exists, and according to this provision, the client is not obliged to pay a proxy fee to the lawyer if it is proven that the dismissal process is based on a justified reason. According to the ingrained case law of our department, in case of justified dismissal, only a surrogacy fee can be requested due to the work that has been completed and completed as of the date of dismissal. Because the relationship of power of attorney is a whole, and azil will lead to all lawsuits and follow-ups between the parties, if it is accepted that azlin is right, it is not possible for the plaintiff to charge a power of attorney fee for work that has not been completed and finalized as of the date of azil. In contrast, in case of unfair dismissal, the lawyer has the right to claim all the surrogacy fee for the work he undertakes, no matter at what stage.

After these explanations, if the case is considered, the plaintiff’s lawyer opened the case at hand to collect a power of attorney fee, claiming that he was unfairly dismissed from power of attorney, and the defendants argued that the suspension was justified. In this case, the issue that needs to be resolved first in the case relates to whether azlin was right or not. Although the defendants did not rely on any reason for dismissal with the statement “on the need I saw” in the dismissal notice, the work in their defense in this case, the plaintiff did not take the necessary care as a surrogate, acted contrary to the obligation of loyalty, did not enter the hearings, . T.. they also stated that he initiated a follow-up without instructions on behalf of him, and for all these reasons they rightly dismissed the plaintiff.

In the expert report based on the verdict, it was stated that “the reason for dismissal is not shown in the dismissal, the abstractly stated statement of dismissal should be considered unfair dismissal”, and the court established the provision without examination and evaluation on all the reasons for dismissal reported by the defendants in their defense. However, 512/1 of the Turkish Code of Obligations. (396/1 Of The Mülga Code Of Obligations.) in the article, it is stated that dismissal from power of attorney and resignation from power of attorney is always permissible, the notification of the will of dismissal is not subject to any restrictions, both for reasons of dismissal and as of time. Article 2 in question. in the paragraph, a proper impeachment and resignation of Non-at the time if you happen to be, so incurred by the other party regarding the obligation to indemnify in the terms of impeachment and resignation, not restricting in any way restricts, on the contrary, the exercise of this right should occur at a time when not just convenient and confirming the freedom relating to possible consequences of regulating content. Again, 174 Of The Law. in the Article, different results have been linked to dismissal or resignation from power of attorney, which vary depending on whether they are based on justifiable reasons. For all these reasons, in a concrete case, it should be accepted that the defendant is not bound by the reason of the dismissal explained in his notice of the will of dismissal, that he may report new and other reasons for dismissal in the case being considered, and that he may base his defense that the dismissal is justified on these reasons. Acceptance of the contrary will result in the restriction of the right to defense, which is regulated and guaranteed in the Constitution. Essentially, this comment, in the style of the legal nature of the agency contract, especially on the relations of succession which constitutes almost a prerequisite of the establishment of ‘mutual trust’ element, this element a close interest in the law and judicial practice in teaching, although not expressly regulated in the obligations of the attorney and fiduciary will continue even after the end of the relationship adopted and regarded as one of the ‘secret’s commitment to an appropriate result also reveals.(See fig. HGK’s T. 11.10.2006, E.2006/13-610, K.Resolution 2006/639)

In that case, the court should examine and evaluate all the reasons for dismissal that the defendants have put forward in this case regarding the issue of “whether the dismissal is justified”, which is the primary dispute between the parties.

On the other hand, although the court stated that “the fact that the plaintiff’s lawyer did not attend the hearing in the Supreme Court”, which is one of the reasons for the dismissal based on this case by the defendant, cannot be a justified dismissal, there is also no hit in this court’s acceptance. Because the lawyer is obliged to follow the work he undertakes until the end, and if the subject of Legal Aid is a case, he is obliged to follow this case until it is finalized, including the stages of Appeal and decision correction. In addition, the provision of a hearing for the benefit of the party justified as a result of the request for an appeal at the stage of the Supreme Court does not result in the conclusion that this stage of the case, contrary to the court’s acceptance, is a separate business. Again, although the court has mentioned that the subject of Legal Aid is guaranteed, the fact that the client’s claim is guaranteed is not enough to accept that the suspension is unfair for this reason.

For all these reasons described, the court should first examine and evaluate all the reasons for dismissal reported by the defendants, including the stage of the hearing in the Supreme Court, and make a decision based on the result, while the provision was established in writing with incomplete and incorrect evaluations is contrary to the procedure and law and requires a violation.

2-according to the reason for the violation, it was not necessary at this stage to examine the other appeals of the defendants.

Result: 1. 2.the provision appealed for the reasons described in paragraph shall be broken for the benefit of the defendants. according to bent, there is no room for the other appeals of the defendants to be examined, 1100.00 TL trial attorney’s money is taken from the plaintiff and paid to the defendant, 381.34 TL received in advance. a unanimous decision was made on 03.11.2015 on the return of the appeal fee on request.