03 Feb What Is The Procedurally Acquired Right?
The General Assembly of the Supreme Court of Appeals defined the vested right as follows. Lar In a case, the right of a party arising out of the procedure of the court or the parties, and therefore the other which is against the other and which is obliged to be observed is called the acquired right. For example, the court acquires the right to obtain a right in favor of the decision to annul the decision of the Court of Cassation.
When a court complies with the decision of the Supreme Court of Appeals, it is obliged to carry out an examination and research in the same manner as it is indicated in the decision and in accordance with the legal principles stated in that decision. Therefore, the fact that the subsequent judgment of the court was found to be in contradiction with the principles set out in the decision of annulment, is the reason of the corruption because it is not in accordance with the procedure.
With the decision to break the case, the procedure and the law has been put into a state. Disregarding this is a distinction between the procedure and the law, which would constitute a clear breach of public order. Accordingly, the Court of Cassation’s decision to comply with the court is bound by this compliance decision. Then he cannot make the decision of resisting from this compliance decision; make a review in the manner shown in the decree decision or give a new judgment as shown.
In order to have legal consequences, the right to a legal action must be made either in a lawsuit or by a court of law or by the Court of Cassation in a case which is not counted as exceptions and that there is a right to be complied with in the interest of either party.
THE GENERAL ASSEMBLY OF JUDGMENT LAW 2017/2096 E., 2017/895 K.
”The text of the case-law“
COURT: The Labor Court
The decision of the Court of First Instance of the Supreme Court of Appeals on 31.03.2011 and numbered 2009/1182 E., 2011/138 K. regarding the acceptance of the case by the first Labor Court of Bursa. With the decision dated 03.10.2013 and numbered 2011/30656 E., 2013/24941 K.
A) Summary of the Claimant’s Claim:
If the plaintiff works as a forklifter at the defendant’s workplace, he / she is asked to be assigned to the work of piece sorting, that the employment is terminated unfairly by the employer when he does not accept the fundamental change in the work conditions, 2 weeks working in the holidays, overtime work, week holiday fees and general holiday fees are not paid by declaring severance pay, notice of compensation, overtime pay, week holiday fee, national holiday general holiday fee receivable, including the interest of 1300 TL interest.
B) Summary of Respondent Response:
The defendant, covering the metal surfaces in the workplace, zinc plating and cataphoresis covering the sections, the plaintiffs in the case of the work as a strap-slinger in the kataforez section due to the performance of the work as of 04.11.2009, the slinging task (the same task) is reported to do in the zinc plating section, but the case that the plaintiff not accept the change of duty and dismissed the contract of employment by not coming to work as of 04.11.2009. he requested the rejection of the case.
C) Summary of local court decision:
Based on the evidence gathered and the expert report, it is assumed that it works as a forklift truck and that the commissioning of the suspension works in the zinc coating section which is fixed in the scope of the file constitutes a fundamental change in the working conditions. and it was decided to accept the case by stating that the work on public holidays and public holidays was clarified by witness statements, and that the extent of the haphazard confession was not respected.
D) Appeal:
The defendant appealed the decision.
E) Rationale:
1-According to the legal reasons that the decision is based on the manuscripts collected and the evidence collected, the appeals of the defendant are outside the scope of the subparagraph.
2 – There is a dispute over the validity of the lamentation between the parties.
In order to terminate the employer’s debts between the employer and the employer, the issue of invalidity in respect of the offense agreements made before the enforcement of the Turkish Code of Obligations should be considered within the following principles:
a) – Within the framework of the deep-rooted case law of our department, the contractual agreements held during the employment relationship are invalid. In this period the worker is completely dependent on the employer and despite the job security provisions, it is possible to continue the employment relationship or to sign an agreement to work outside of his / her will in order to get some labor receivables as soon as possible. day, 2008/41165 E., 2010/29240 K.).
b) In the event that the constitution does not contain a date and the content is not clearly understood after the date of termination, it cannot be valued (the Court of Cassation 9.HD. 5.11.2010, 2008/37441 E, 2010/31943 K).
c) -Registration of the Law of Obligations No. 818 on the Law no. should also be evaluated. In the event of a contractual failure of one of the parties, the other party’s or third party’s fraud or intimidation in the face of the will of the willpower, can not be mentioned.
On the other hand, the excessive utilization criterion mentioned in Article 21 of the Code of Obligations No. 818 should also be evaluated in terms of the validity of the discharge agreements.
The cases of the will of the will in the Hebrews have to be put forward within the one-year right-of-time period stipulated in Article 31 of the Code of Obligations No. 818 (Supreme Court 9.HD. However, the period of one-year employment does not take place during the period of the employment relationship with respect to the printed confessions received during employment.
d) – The ubra contract is a way of terminating a debt whose existence is undisputed, it is not possible to end the debts that are suspicious or controversial. For this reason, it cannot be considered that a debt that is claimed to be not entitled by the worker may be subject to release. It should be accepted that the offense contracts that contradict with the defense and other records of the employer are invalid (Court of Appeals 9 th th.
e) -In case of payment of goods with the contract, if the receivable is fully paid, the debt will be terminated through execution. On the other hand, in cases of partial repayment, we do not value the claim in the case-law of the Department and it is accepted that the payment is in receipt of the receipt (Supreme Court 9.HD 21.10.2010 day 2008/40992 E, 2010/39123 K.). Receipt of the amount of work done while working does not eliminate the receipt effect (Supreme Court 9.HD. 24.6.2010 day 2008/33748 E, 2010/20389 K.).
f) -In case of non-contractual discharge contracts, the issue of validity should be handled with care. The inspection of the will and the solution of the validity of the confession should be sought according to the characteristics of the concrete case (Supreme Court of Appeals, 9 th June 27, 2008, 2007/23861 E, 2008/17735 K.). In the Hebrew, which is issued after the termination and the items of the receivables are counted one by one, the willpower shall be deemed to be valid as long as the cases of the will are proved and the proof of will is put forward (Court of Cassation HGK.
g) – Again, the fact that the employee has declared his statutory rights to the Hebrews indicate that he has no will to do so (Court of Appeals 9 th th Day 4/13/2010, 2008/40032 E, 2010/31666 N).
h) In terms of labor receivables not included in the constitution, it cannot be said that the debt is over. The existence of contradiction with the defense and contradiction in terms of some of the labor receivables in Hebrew does not completely invalidate the deal. In the case of parts that do not contradict with the defense, the will to be paid should be valued (Supreme Court 9 .HD. 24.6.2010, 2008/33597 E, 2010/20380 K) In other words, it is possible to mention the divisible effect of confusion in such cases. In the case of a receipt is considered to be a receipt in terms of some receivables, in terms of some labor rights and receivables can be mentioned invalidity due to contradiction. In terms of items which do not have any contradiction and do not contain any amount, the debt is terminated by means of debt.
The Hebrew defense can be put forward at every stage of the proceedings with the objection of eliminating the right (Court of Cassation HGK. 27.1.2010 days 2009 / 9-586 E, 2010/31 K.; Supreme Court 9.HD. 13.7.2010 day, 2008/33764 E, 2010/23201 K.).
In the present case, I received the above-mentioned royalties that I have deserved during the departure um ak .. all my wages, all my social rights and wages for the week and general holidays ve miş .. In the case of overdue fee, an amount of 214.64 TL is accrued.
The Court was not valued on the grounds of contradictory content. However, there is an amount in terms of the amount of work that will be taken over, the general holiday and the week holiday will not contain an amount in terms of amount, and there is no contradiction in terms of scope. In the case that the court will get more work, the amount paid should be deducted and the amount paid should be deducted. Written decision is wrong.
3- Although the plaintiff does not retain his rights in the lawsuit regarding the surplus, it is wrong to enforce the requests by keeping the rights of the court reserved for surplus dava Dav
The court ruled in the previous decision that the case had been reversed and the case was rejected.
Conclusion: It was decided unanimously on the date of 03.05.2017 that the appeal decision of the defendant deputy with the acceptance of the appeal objections to the resolution of the appeal because of the different reasons indicated above, the reason for the review of other appeals appeal for the time being, the correction way of the decision was closed.
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