General Assembly of the Supreme Court of law
2018/502 E.
2018/1049 K.

Court :Court of First Instance

At the end of the trial due to the “Prevention of hand-throwing, destruction and ecrimisil” case between the parties; Ankara West 3. 18.09.2012 day and 201/246 E. given by the Court of First Instance for the partial acceptance of the case, 2012/239 K. examination of the numbered decision on request by the plaintiff and defendant attorneys, decision Supreme Court 1. The decision was first upheld by the legal department, upon the request of the defendant’s attorney for correction of the decision, the request was accepted and the decision of approval was lifted and dated 09.12.2013 and 2013/13861 E., 2013/17433 K. by numbered decision:

“ … The case relates to the prevention,destruction and ecrimisil requests for possession of the property.

The court’s decision on the partial acceptance of the case was appealed by the parties and the Department upheld it and the defendant requested a correction of the decision.

According to the contents of the file and the evidence collected; the case is filed with the petition dated 11.01.2011 in Ankara 3. It was opened to the Court of First Instance and the decision of the powerlessness given by the said court was finalized on 26.05.2011 without appeal.

As it is known, 6100 P. 20 of the law of Civil Procedure (HMK). according to the article, the court that makes the decision of dereliction of duty or lack of authority is satisfied with the decision to send the case file to the competent or competent court in this decision. He cannot send the case file to the competent or competent court on his own (if you are). In order for the case file to be sent to the competent or competent court and the case to be continued in the competent or competent court, one of the parties must submit a notification to the court which has made the decision of incompetence or incompetence within a period of two weeks from the conclusion of the decision of incompetence or incompetence.
The two-week period here is of a debased nature and is subject to re-examination by the court.

Although the decision on lack of authority in the concrete case was finalized on 26.05.2011, Ankara 3. With the letter of the court of First Instance dated 27.05.2011, it is seen that the file was sent to the Xinjiang Court of First Instance, which is authorized by re’sen.

As it happens, HMK’s 20/1. while it should be decided that the case should be considered unopened, it is not right to rule on the basis of the work.…”

on the grounds that the case was overturned and the file was turned down, the court resisted the previous decision at the end of the re-trial.

RESOLUTION OF THE GENERAL ASSEMBLY OF THE LAW

The law was reviewed by the General Assembly after it was understood that the decision to resist had been appealed during its time and the documents in the file were read.:

The case relates to the Prevention of impoundment, demolition and ecrimisil requests.

The attorney of the plaintiff has requested that a portion of the property owned by his client be used by the defendant as a service area without permission, and that the destruction and collection of the damages suffered by the plaintiff be decided by preventing wrongdoing.

The acting defendant appealed the authority, stating that the estate was located in Etimesgut, therefore the Xinjiang courts were competent.

Ankara 3. Court of First Instance, the competent court of the Land of the land on the grounds that the courts of Xinjiang, the decision was given without authority, the decision was finalized without appeal, the file was sent to the competent court, Xinjiang 3. As a result of the trial in the Court of first instance, it was decided to partially accept the case.

Although the decision was upheld by the special office upon the request of the attorneys of the party to appeal, this time the decision of approval was removed after the attorney of the defendant went to the way of Correction of the decision and it was broken on the grounds stated in the title section above.

The provisions of the law to be applied in the case by The Local Court are provisions of the Civil Procedure Law No. 1086, which was in force at the time of the finalization of the decision of the incapacity of Humk 193. according to this article, the application to be made to the competent (or unauthorized) court to send the file to the competent court upon the decision of incompetence shall be made with a petition as a rule, but no form is envisaged for the application petition, it is necessary and sufficient to pay the expense of the notification to be made to the, in the concrete case, the decision was made to resist on the grounds that the plaintiff party applied to the court within the legal ten-day period and paid the invitation notification expense and fulfilled the legal regulation requirement.

The decision to resist was appealed by the plaintiff and the defendant’s deputies.

The dispute that comes before the General Assembly of law through resistance: upon finalization of the decision of incompetence, whether the application to be made in order to send the case file to the competent court is required by petition, whether it is deemed sufficient that the notification expense has been deposited, whether the request to send the file to the competent court within the

It should be noted that the case at hand was opened on 12.01.2011 when the law on Civil Procedure (HUMK) No. 1086 was in force and the law on Civil Procedure (HMK) No. 6100 came into force while the case was in derdest.

Since the provisions of both laws contain different regulations on the proceedings to be carried out in order to be continued in the court of competent or competent to judge upon the decision of non-duty or incompetence, it is necessary to determine which provisions of the law should be applied to the case in order to resolve the dispute.

As is known, the basic principle in the field of procedural law is that the provisions of the law relating to the trial shall take effect immediately. The reason for the adoption of this principle is that procedural provisions are closely related to public order.

In the implementation of the rules of procedure in terms of time, the immediate implementation of the rule should be taken into account as well as whether the relevant procedure is completed when the new rule of procedure comes into force. Because if the new rule takes effect after a procedural transaction is completed, the completed transaction remains in effect. In contrast, if a procedural process is not yet completed, the new law will take effect immediately as a rule.

As a matter of fact, HMK No. 6100, which came into force on 01.10.2011, has the title “implementation in terms of time” of 448. substance;
“The provisions of this Act shall be applied immediately, provided that they do not affect the completed transactions.”includes provision.

Therefore, in order to determine the provisions to be applied to the concrete dispute, the matter of whether the transaction subject to the dispute is “completed procedure” should also be addressed.

It should be noted that the case consists of various procedural procedures and stages, beginning with the submission of the petition to the court and continuing until the conclusion of a decision (or provision). Each procedural procedure during the trial must be treated and evaluated separately. Whether the new law will be effective in this matter is not to be said whether it will consider a case as a whole. If a procedural procedure and section of the proceedings have been completed, the new law will no longer be effective on that procedural procedure and therefore will not be applied.

If a procedural procedure is initiated and completed during the trial, a new procedural rule comes into force, the procedure shall remain valid. In other words, completed procedural procedures are not affected by the newly enacted procedural provision (or law).

When we look at the concrete event within the scope of all these explanations, the case is Ankara 3 at the time of HUMK No. 1086. Opened in the Court of First Instance and 07.04.2011 day and 2011/17 E., 2011/127 K. with the numbered decision, it is decided that the court has no jurisdiction, that the decision is finalized and that the file should be sent to the competent court if requested. The said decision was notified to the deputies of the parties and was finalized on 26.05.2011 without appeal. Therefore, the time period for the procedural process subject to the dispute has expired before HMK No. 6100 came into force, at the time of HUMK No. 1086, which was in force at the time. Therefore, there is no doubt that the provisions of the law that should be applied in the settlement of the dispute are the relevant provisions of Humk.

The corresponding 27 of Humk No. 1086. article ” if the court decides to reject the lawsuit because it is not a duty or a salahiyettar, the arzuhali and the case file will be sent to the court to which it belongs and no charges will be taken again.”includes provision.
Humk’s 193. substance;

“The plaintiff has to arrange and file a new petition to replace the petitioner whose annulment has been decided upon.

Upon the decision of non-duty or non-Authority, the plaintiff is obliged to notify the other party in the court of Duty or authority.

In both cases, the petition must be re-filed within ten days of the decision being finalized or the call paper must be served again.

Otherwise, no lawsuit is filed. The discrete provisions specified in the law are reserved.” he is in charge of his judgment.

The court which makes the decision of incompetence in accordance with the provisions of the mentioned article is satisfied with the decision of “sending the case file to the competent court on request” in the decision of incompetence. He can’t send the case file to the competent court on his own. In order for the case file to be sent to the competent court and the case to be continued in the competent court, the plaintiff must apply to the competent court within ten days from the date of the final decision of the competent court (or the one who made the decision of the incompetence) by petition or have the defendant served with a Otherwise, no lawsuit is filed.

The term of application to the competent court is ten days. Therefore, it must be observed spontaneously by the court.

An authorized (or unauthorized) application to the court happens with a petition. However, Humk did not envisage a form for this petition. This petition is not a case petition, the petition is requested to take the necessary actions to see the case in the competent court.

Within the said ten-day application period, it is necessary and sufficient to pay the expense of notification to be made to the other party and, if any, the cost of sending the file by applying to the authorized (or unauthorized) court.

The claimant may make his application before the ten-day application period has yet to be processed, and this application is valid. Likewise, there is no law provision preventing this.

As stated above, if a petition is not applied to the competent (or competent) court within ten days of the finalization of the decision, or if a call sheet is not issued, the case shall be deemed not to have been filed.

When the concrete conflict is evaluated in the light of these explanations; Ankara 3. 07.04.2011 given by the Court of First Instance and 2011/17 E., 2011/127 K. although a petition containing the request to send the file to the authorized court by the plaintiff’s attorney is not in the case file, it is understood that the required notification expense is paid by the plaintiff in order to have the other party served in the authorized court without the explanation attached to the submission letter. In this case, Humk’s 193. it is clear that the procedure stipulated in the article was fulfilled within the ten-day right-lowering period and that the conditions for the case to be considered unopened did not occur.

As such, there is a decision to resist, which addresses the issues described above and accepts that the conditions for the case to be considered unopened in accordance with Article 193/end of Humk have not been established.

However, since other appeals against the merits of the case have not been examined by the special Office, the file must be sent to the special Office for such investigation.

S O N U T: for the reasons described above, resistance is appropriate and the plaintiff’s and defendant’s attorneys ‘ appeal for the merits of the case should be examined by file 8. It was decided unanimously on 09.05.2018 that the decision should be sent to the legal department within fifteen days of the notification date.