Where The Defendant Heirs Have The Right To Proceed With The Case, The Plaintiff's Waiver Will Not Give Rise To a Provision - AŞIKOĞLU LAW OFFİCE
Aşıkoğlu started his position as the Alanya Public Prosecutor in 2009 and continued until 2013 when he quit his position to initiate his career as an attorney at law.
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Where The Defendant Heirs Have The Right To Proceed With The Case, The Plaintiff’s Waiver Will Not Give Rise To a Provision

21 Mar Where The Defendant Heirs Have The Right To Proceed With The Case, The Plaintiff’s Waiver Will Not Give Rise To a Provision

Posted at 13:30h in General by
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T.C. SUPREME

2.Legal Department
Basis: 2016/13586
Verdict: 2016/12490
Decision Date: 28.06.2016

DIVORCE CASE – WHERE THE HEIRS OF THE DEFENDANT HAVE THE RIGHT TO PROCEED WITH THE CASE – THE WAIVER OF THE PLAINTIFF WILL NOT RESULT IN A PROVISION – THE NEED TO DETERMINE THE CASES OF DEFECTS OF THE PARTIES – VIOLATION OF THE PROVISION

Summary: The Heirs of the defendant have the right to continue the case. For this reason, the claimant’s waiver does not constitute a provision. If so, the court will rule 181/2 of the Turkish Civil Code. according to the article, the parties should determine the cases of defects, while the decision was contrary to the procedure and law and required violation.

(4721 P. K. m. 166, 181)

Case and decision: at the end of the reasoning of the case between the parties, the provision given by the Local Court, the date and number shown above, was appealed by the defendant (his heirs), the documents were read and discussed and considered as necessary:

In accordance with article 166/last of the Turkish Civil Code, the plaintiff male filed this case on 18.09.2012, and the defendant female died on 23.04.2014. 181/2 of the Turkish Civil Code by the female heirs of the defendant. in accordance with the article, the case for the defect was continued. The court ruled that the legal heirs were entitled to the rights of the Turkish Civil Code 181/2. according to the article, it was decided that there was no place for the defendant’s female heirs to be decided against these demands, citing that the right to continue the case in terms of defect was legally recognized only to the heirs of the plaintiff. 03.12.2015 date 2015/6839 basis and 2015 23004 Decision No. of our apartment in the event of the death of one of the parties to continue the case in terms of defect is recognized by law to the heirs of both parties (TMK.m. l81 / 2) and the initial provision that a positive or negative decision should be made on the claims of the female heirs of the defendant for the defect was broken. After the violation, the plaintiff waived his case on 25.03.2016. The Union of marriage ended in death without the plaintiff waiving the lawsuit. 181 of the Turkish Civil Code of the heirs of the defendant. according to the article, he has the right to continue the case. For this reason, the claimant’s waiver does not constitute a provision. If so, the court will rule 181/2 of the Turkish Civil Code. in accordance with the article, the parties must determine the cases of defects, while the decision in writing is contrary to the procedure and law and requires violation.

Conclusion: it was decided by a majority vote to overturn the Appellate provision for the reason shown above, to return the appellate advance fee to the Depositor upon request, to be clear within 15 days of the notification of this decision. 28.06.2016

VOTING AGAINST

181/2 Of The Turkish Civil Code. according to the article, while the divorce proceedings are ongoing, if one of the heirs of the deceased spouse continues the case and the fault of the other spouse is proven, the right spouse cannot be the legal heir of the deceased spouse and loses the rights granted to him by death-related savings made before the divorce, unless otherwise understood from the savings.

Heirs of the deceased wife, TMK.nun.The most important condition for them to exercise their rights set out in Article 181/2 is that there is a divorce case filed in murisin’s health and continues after his death.

181/2 Of The Turkish Civil Code. according to the article, the rights and powers of the heirs of the deceased spouse are limited to the rights and powers granted to them as a plaintiff or defendant in the health of their Muris.
The right wife opened the case at hand. There is no divorce case filed by the deceased spouse. However, the plaintiff has expressly waived the noble lawsuit.

A waiver is the claimant’s partial or complete abdication of the claim result (HMK m. 307-(1)). It can always be done until the sentence is finalised (HMK m. 310-(1)). It does not depend on the consent of the other party and the court (HMK m. 309-(2)). It produces legal consequences, such as the final provision (HMK m. 311-(1)).

If the plaintiff waives his claim, the dispute subject to the lawsuit ends. As a rule, every case can be waived. Because no one can be forced to open a case in his favor, nor can he be forced to follow the case he has filed to the end. Even if the parties do not have savings authority over the subject matter ( i.e. in cases where the savings principle is not fully applied), the plaintiff may waive his or her claim. M.303) although it does not have legal consequences, the plaintiff can waive the divorce case and with this the divorce case ends. (Prof. Dr. Baki Kuru-Prof. Dr. Ramazan Arslan-Prof. Dr. Ejder Yilmaz, Civil Procedure Law Textbook, 22. print, page: 529)

In the concrete case, there is no case left in the middle in such a way that the defendant’s heirs can continue. Because the claimant’s waiver is a party process that ends the case, resulting in legal consequences such as a final provision.

If Muris in the position of the defendant was right, the same legal situation remains valid after the death of the defendant, just as the plaintiff could waive his case of Free Will, and this waiver could lead to legal consequences such as a final decision without the consent of the court and the defendant. The law gave the plaintiff the right to waive his or her case until the provision was finalized. After the death of the defendant, this right cannot be taken away from the plaintiff.

If Muris had waived the plaintiff’s case before he died, the court would have decided in whatever way the court would have decided, and if the plaintiff had waived his case after the defendant died, the court would have to make the same decision.

It is contrary to the general principles of Procedure, Law and law that the plaintiff may face an extremely severe outcome (the result of the inability of his wife to be his heir), which the plaintiff may face only as a result of the annulment of a marriage or the decision to divorce.

In a concrete case, since the plaintiff has clearly, unconditionally and unconditionally waived his case, it is correct for the court to decide to dismiss the case on grounds of waiver. The verdict must be upheld.

For these reasons, I do not agree with the opinion of the majority that the provision is broken.

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