T.C. SUPREME General Assembly of Law E. 2017/11-91 D. T. 2018/924 18.4.2018

At the end of the trial due to the “insurance policy-based receivables” case between the parties; Ankara 6. 26.09.2012 day and 2011/657 E. given by The Commercial Court of First Instance on the rejection of the case, 2012/454 K. after the appeal of the decision no.was requested by the attorney of the plaintiff, the Court of Cassation 11. Law Department 10.01.2014 day and 2013/9679 E., 2014/448 K. by numbered decision:

“…The plaintiff’s lawyer claimed and sued the collection of US $ 8,000, 00 with advance interest from 31.03.2011, without reserving his rights to excess, claiming that his client was insured with a credit card Unemployment Insurance Policy before the defendant company, that if his client was unemployed in accordance with this policy,the credit card debts should be paid by the defendant … company, his client was terminated on 31.03.2011, but no payment was made by the defendant party.

The defendant’s attorney said that the plaintiff does not have a driver’s license for active enmity, the policy beneficiary and the owner of the right to Dain-i murtehin Akbank T.A.P. he asked for the dismissal of the case, arguing that the personal expenses of the plaintiff were covered by the policy, but that the expenses subject to the lawsuit were not the personal expenses of the plaintiff.

By the court; claims, defense and all the file according to the scope, dain-i murteh reported by the Bank of contingent consent of the owner of the rights is, however, contingent consent is not valid, therefore, the absence of active hostility on the grounds of the plaintiff’s driver’s license, the case is dismissed to lack of the driver’s license of active antagonism.

The decision was appealed by the acting plaintiff.

The case relates to the claim of receivables based on the insurance policy.

By the plaintiff, part of the account statements were submitted to the file, claiming that the credit card debt was paid to the Dain-i murtehin bank. In this case, the court, in the case of credit card debt is the subject of the plaintiff by the party dain-i murteh has been paid to the bank, whether detected by expert review and involved in the case of three separate loan, considering their credit cards, which is held between the parties in the insurance policy which is written on or in which active hostility to the plaintiff’s property, while you should have the capacity to evaluate whether the provision in written form is not true, 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.

The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the documents in the file were read, the requirement was discussed:

Verdict: the case relates to a credit card claim based on an unemployment insurance policy.

Attorney of the plaintiff claimed that his client was insured with a credit card unemployment insurance policy before the defendant company, that credit card debts should be paid by the defendant … if his client is unemployed according to this policy, his client was terminated on 31.03.2011, but no payment was made by the defendant, claiming that the surplus rights were reserved and sued the defendant for collection of US $ 8,000 together with advance interest on 31.03.2011.

Attorney of the defendant, the court is not authorized, the plaintiff does not have a driver’s license ( adjective ) for active enmity, the policy beneficiary and owner of the right to Dain-i apostate Akbank T.A.P. he asked for the dismissal of the case, arguing that the personal expenses of the plaintiff were covered by the policy, but that the expenses subject to the lawsuit were not the personal expenses of the plaintiff.

Although the bank, the owner of the right to Dain-i apostate, granted the plaintiff conditional consent, it was decided to reject the case for the absence of an adjective on the grounds that the consent was not valid, so the plaintiff did not have a driver’s license for active enmity.

On the appeal of the plaintiff’s attorney, the decision was overturned by the Special Department for the reasons shown in the title section above.

In addition to its reasons in the first decision by the court, it is not right to judge the bank that owns the right to Dain apostate is not a party to the case, in a case that is not a party to its rights to material law ( rights arising from the right to pledge ) and establish a provision for the holder of the right to pledge who is not a party to the case, the fact that the bank that owns the right to pledge has been reset for a moment due to the credit relationship in a busy credit nature is not a reason that ends the right to pledge, it was decided to resist on the grounds that the right to pledge would provide assurance for the bank’s receivables that would arise later, and that resetting the debt status of the receivables for a moment would not affect the result.

The decision to resist was appealed by the acting plaintiff.

A dispute before the General Assembly of law through resistance; the court determines whether the credit card debts subject to the case are paid to the Dain-i-murtehin bank by the plaintiff, as well as whether the plaintiff has a driver’s license for active enmity in terms of which credit cards are in the insurance policy arranged between the parties.

Credit card unemployment insurance subject to the lawsuit was made to guarantee payment of credit card debt up to TL 10,000.00 in case of unemployment. 3.1 of the “general terms of debt payment insurance”on the credit card unemployment insurance policy. “if the insured remains unemployed, his payments to be made in accordance with the contract shall be covered under the unemployment guarantee,” it was said in the article.

By the way, it is worth explaining what Dain-I apostate means. Dain and apostate; means hostage creditor. Dain-i murtahin is a natural or legal person who is a first-degree creditor of the compensation to be paid due to a debt or loan that he has given to the insured person, and this status is specified in the policy. Since the collateral creditor ( dain and apostate ) is shown as the beneficiary of the insurance, i.e. the insured, the right to claim and sue for insurance compensation in the event of the realization of the risk primarily belongs to the pledged creditor in the case of the beneficiary of the insurance ( Ulaş, I.: Applied Damage Insurance Law, Ankara 2012, p.176 ).

After these explanations, since the case was rejected by the Local Court on the grounds of active animosity ( adjective), it will be appropriate to focus first on the concept of adjective in the case in resolving the dispute.

An adjective is the relationship between the subject matter and the parties to the case. Although the persons referred to as plaintiffs and defendants in the petition are parties to that case according to the theory of parties, this does not always mean that these persons have the adjective of parties. A party adjective is not a condition of litigation. But since the adjective is an appeal, the judge, like other objections, spontaneously takes the evil eye as long as the party can understand the adjective from the case file ( Pekcanitez, H./Atalay, O./ Özekes M.:Civil Procedure Law, Ankara 2012, p. 248-249 ).

After this general explanation of the adjective, it is necessary to examine the relevant provisions of the Turkish Commercial Code ( TTC) No. 6762 and the relevant provision of the Turkish Civil Code No. 4721, which were in force at the time of the incident.

Article 1269 of the Turkish Commercial Code No. 6762 entitled “beneficiary”: “the owner, the owner or the pledged creditor, the agent, tenant, commutator and other persons who are responsible for the preservation of the property, the person who is really interested in the preservation of the property, or their legal representatives, may insure this interest.”;

1270 entitled insurance made to the name and account of another person. article: “a person may conclude insurance even on the name and account of another person; so much so that he is personally liable for the insurance premium if he is not authorized to represent anyone with whom he acts on the name and account.

A person who has entered into an insurance contract on his or her account will benefit from insurance if he or she gives consent before or after the realization of the risk.

An insurance contract that is made on the behalf and account of another person, which is not understood from the terms of the contract, is considered to have been made on the behalf and account of the person who has done so.”

contains provisions.

The first paragraph of Article 879 of TMK No. 4721 entitled “Right on insurance compensation” is as follows: “insurance compensation, which is Muaccel, may be paid only with the consent of all pledged creditors”.

When the legal regulations described are evaluated together, the TCC.in accordance with article 1269 of the same law 1270, as a hostage taker of the property, he may insure his interest in that property on his behalf. according to the provision of the article, it is also possible for someone else to insure the property subject to the pledge in the account of the hostage taker and in his favor. According to Article 4721 of the TMK, insurance compensation must first be granted to the holder of the right to pledge or obtain explicit consent.

As a matter of fact, the same considerations, 28.09.2012 day of the General Assembly of law, 2012/17-394 E., 2012/643 K. it was also highlighted in their numbered decisions.

As for the concrete dispute, the credit card unemployment insurance certificate is not sued by Akbank T.A.P. It is noted that it has a branch. By the plaintiff, it is claimed that the credit card debt was paid to the Dain-i murtehin Bank, and some account statements were submitted to the file. In this case, the court must determine by expert examination whether the credit card debts subject to the case were paid to the Dain-i apostate bank by the plaintiff, and evaluate which credit cards were written in the insurance policy arranged between the parties, which or which ones were active enmity ( adjective ) of the plaintiff. In other words, in the context of credit card payments made by the plaintiff, even if the out-of-court Dain-i murtehin bank does not give consent to the case, the plaintiff must admit that he has an active enmity ( adjective ) driver’s license in the case.

In this case, for the reasons described above, it is necessary to comply with the decision to break the special circle adopted by the General Council of law, while resisting the previous decision is against the procedure and the law.

For this reason, the decision to resist must be broken.

Conclusion: it was unanimously decided on 18.04.2018 that the decision to resist the adoption of Appeals by the plaintiff’s attorney should be violated in accordance with article 429 of the Civil Procedure Law No. 1086, which is applied with Article 30 of the law No. 6217 and provisional Article 3 of the Civil Procedure Law No. 6100, in case of request, the return of the advance costs of the appeal to the Depositor, the path of Correction of the decision is closed.