T.C. SUPREME
8.law office
Based on: 2013/223
Decision: 2013/9173
Date of decision: 13.06.2013
THE CASE OF CANCELLATION OF THE APPEAL – THE FOLLOW-UP INITIATED DUE TO THE RECEIVABLE ARISING FROM THE LIQUIDATION OF THE GOODS REGIME – THE WITHDRAWAL OF ALL THE MONEY IN THE BANK ACCOUNT BY ONE OF THE JOINT ACCOUNT HOLDERS ALONE – ACCEPTANCE OF THE CASE BY HALF – THE PROVISION IS VIOLATED
ABSTRACT: On 9.6.2003, when the divorce case was filed and the goods regime ended, all the money was available in the account, and the euros withdrawn about three months before 3.7.2003, when the divorce decision was finalized and the marriage ended, were spent on the needs of the house in such a short period of time, does not correspond to the usual flow of life and is unacceptable. According to these explanations, it was not correct to decide that 20% (twenty percent) of the executive denial compensation should be decided because the case (request) is liquid (certain), which will allow the cancellation of the appeal to continue the proceedings with half acceptance, while it was wrong to decide that it was completely rejected.
(2004 P. K. m. 67) (6100 P. K. m. 23, 33) (1086 P. K. m. 25) (4721 P. K. m. 688) (13. HD. 24.03.2008 T. 2007/14801 E. 2008/4078 K.)
Case: C. B. with H. (B.) I. 6. Bakırköy 6. refusal of the case of cancellation of the appeal between them (arising from the receipt of a contribution). dec. Although the examination of the decision No. 150/1066 dated 29.12.2010 and issued by the Family Court by the Supreme Court was requested by the plaintiff’s deputy during its term; the file was examined and considered as necessary:
Verdict: Plaintiff C. B. Tekstilbank 52.168 Kayseri deputy in the joint account at the branch,the defendant was taken by the wife of 17 euro, this money is created by the accumulation of the client within the Union of marriage, started enforcement proceedings against the defendant if the defendant had stopped monitoring the execution of the divorced spouse follow up on objection on the grounds that the appeal and the defendant continued to follow up on the withdrawal of 40% of the executive has asked that we be given not less than to pay compensation for denial.
Defendant H. B. I. his deputy defended the decision to dismiss the case.
The court decided to dismiss the case on the grounds that both parties have the right to withdraw the money alone, where the bank account is joint between the plaintiff and the defendant, and to receive 40% dec denial compensation from the plaintiff and pay it to the defendant. During his term, the plaintiff was appealed by his deputy.
It is up to the judge to explain the events, to give the parties a legal qualification and to determine the article of the law to be applied (H. 6100 No.M.K.- 33 m.). According to the way the claim is put forward; the plaintiff’s deputy in the case stated that the objection to the enforcement proceedings initiated against the defendant (debtor) due to the receivables arising from the liquidation of the goods regime i.I.K.nun 67. in accordance with the article, he requested its cancellation.
The parties were married on 14.9.1990. they were divorced when the decision on the acceptance of the divorce case filed on 9.6.2003 was finalized on 3.7.2003. The following 52,168.17 Euro bank account at the Tekstilbank Kayseri Branch was opened by the plaintiff and the defendant as a on 24.12.2001, and the account was closed by the defendant on 10.4.2003 by withdrawing money. According to the agreement concluded with the bank for opening an account and dec between the two files, the opened account is joint, and both of them are authorized to withdraw money together or separately, but; it is fixed by the scope of the contract, in which the liability is joint and mutual. The corresponding dec of the bank does not specify the share between the parties. In such cases, T.M.K.nun 688/2. the provision of the paragraph should be taken into account. Article 2 of the mentioned article according to the paragraph , it should be accepted that such joint bank accounts in which the share is not specified in accordance with the provision are at a half-rate. The application of the Supreme Court and our department is also in this direction. It is necessary to agree on the necessary sharing in the joint bank account that the plaintiff and defendant opened of their own free will during the continuation of the marriage union and to acknowledge that they have done according to this ratio. The fact that all the money in the bank account is withdrawn by one of the joint account holders alone does not mean that all the money is donated to that account holder or belongs to him.
On 9.6.2003, when a separate divorce case was filed and the property regime ended, all the money was available on the account, and the 54,341 euros withdrawn about 3 months before the 3.7.2003, when the divorce decision was finalized and the marriage ended, were spent on the needs of the house in such a short period of time, does not correspond to the usual flow of life and is unacceptable. According to these explanations, with the acceptance of the case (request) at a half-rate, the cancellation of the appeal is determined by the fact that there is a liquid (certain-specific) that will take the continuation of the proceedings.I.K.nun 67/2. according to the paragraph, 20% (twenty percent) executive denial compensation should be decided, while it was not correct to make a decision to reject it completely on written grounds by making a mistake.
On the other hand, the Supreme Court is on the 13th. The date of the HD is 24.3.2008 and 2007/14801 E., By Decision No. 2008/4078; <… on the grounds that the claim is aimed at the liquidation of goods acquired in a marital union, the court in charge is not the Court of First Instance, but the Family Court …> due to the finalization of the decision that H.M.K.nun 23/2. article (H.U.M.K.in accordance with (25/son ), it is binding on the Local Court.
Conclusion: For all these reasons, the decision of the Local Court, which is considered contrary to the procedure and law, with the acceptance of the appeals filed on the spot of the plaintiff’s deputy, is No. 6100 H.M.K.nun is Temporary 3. article H. No. 1086, which will be applied by sending the article.U.M.K.nun 428. in accordance with the Article H.U.M.K.nun 388/4. (H.M.K.m.297/o) and H.U.M.K.in accordance with Articles 440 /I of the Supreme Court, it was decided by a majority vote on 13.06.2013 that a request could be made to correct the decision against the announcement within 15 days of the notification of the announcement, return it to the plaintiff if an advance payment of TL 18.40 was requested.
VOTE AGAINST
Plaintiff C. B. summarize the fee in the completed case petition; <… Bağcılar 1. 2003/2536 the saved file with the Executive Directorate on the basis of enforcement proceedings against the defendant what he did with paperwork 48 ilamsiz the sample, however, the debtor (defendant) because of the objections of the pursuit that had stopped, essentially, despite their accumulation of money to his wife opened a joint account because of the trust, however, explained by abusing the trust of the defendant and therefore the withdrawal of the appeal by the court of first instance within the period to appeal to the continuation of the monitoring, the defendant against 40% not less than to deny to govern executive compensation, he demanded and sued for a decision to leave the costs of the trial on the defendant.
In its petition dated 14.5.2004, the defendant party filed an appeal for authorization, and also summarized its statements on the merits; <… the parties agreed that before the divorce, the passenger cars, motorcycles, dowry belongings of the partners were left in the plaintiff, the money in the joint account was unique to him, he did not accept the lawsuit filed …>.
In the first decision of the Court dated 30.3.2007: on the appeal of the plaintiff’s deputy, it was decided to dismiss the case that could not be proven: Supreme Court 13. As written in the decision of the Law Department dated 24.3.2008, 2007/14801, 2008/4078, <… the court charged with taking care of the case is the Family Court, and since the case filed taking into account the defendant’s claim is aimed at the liquidation of the goods acquired in the marital union, the court responsible for the case is the Family Court, and the duty is taken into account, the local court decision is not examined other matters> Bakırköy 11. On 23.12.2008, the First Instance Law Court complied with the declaration of corruption and issued a decision of non-duty. Upon finalization of the decision, the file was sent to the Family court. In summary, in the decision dated 29.12.2010, the subject of the appeal, it was decided to reject the appeal case and give the defendant the amount of 40% of the amount you will receive as compensation for the denial of execution taken from the plaintiff as compensation for the defendant. Within the period of the judgment, the plaintiff was appealed by his deputy for the written reasons in his petition.
The evidence collected is included in the entire file; the evidence collected by the creditor (plaintiff) deputy on September 10, 2003 by Bağcılar 1. In the execution follow-up file registered in the 2003/2536 Basis of the Enforcement Directorate, 10% legal interest for a total of 54.341 euros against the defendant (debtor) was followed up with an example of 48 documents as a claimant for an indefinite execution. The debtor (defendant) appealed against the with his petition to the Erdemli Executive Directorate dated 22.9.2003. In addition, the creditor (plaintiff) has requested that the continuation of the proceedings be ruled against the defendant with the cancellation of the appeal against the enforcement proceedings and the non-enforcement compensation of not less than 40%, as the attorney has clearly stated in his petition during the period and as he has defined the result in the claim section. The Court held proceedings in the department of general provisions and, as described above, on 30.3.2007, it was decided to dismiss the appeal case, which could not be proved.
As it is, the Supreme Court is 13. The Legal Department has approved the case with the above mentioned violation clause.M.K.see nun 202 et al. in accordance with its articles, it qualified it as a case for the liquidation of the goods regime and explained that the issue of duty should be taken into account, since it is related to public order. However, the local court has complied with this decision to overturn it. According to the Supreme Court practices, by complying with the violation clause, the parties have established a duly acquired right in favor and against them. However, the case at hand is not a case for the liquidation of the goods regime, as it was originally filed correctly. It is a type of lawsuit for the cancellation of the appeal and the compensation of the denial of enforcement due to the objection to the enforcement proceedings without context. In fact, while it is correct to conduct this case in accordance with the general provisions and decide it as written in the first decision, and within 10 years from the date of opening the divorce case, it is possible to open any case to the Family Court for the liquidation of the property regime, the Supreme Court 13. If the mentioned decision of the Legal Department is procedural and illegal, it has established a duly acquired right to comply with it.
Apart from all this, H.U.M.K.nun 74 and 76. according to the article, H.M.K.nun 33. the legal qualification of the parties to report events in accordance with the article belongs to the judge. Although the meaning of this general and legal rule was left to the courts due to the fact that the request in the petition was not clearly explained or understood, the request in the concrete case was submitted within the time period due to the objection to the enforcement proceedings and in accordance with the general provisions.I.K.nun 67. it is a case of cancellation of an appeal filed in accordance with the article. For these reasons, H.U.M.K.nun 74, 76 and H.M.K.nun 33. according to the article, there is no need to make another qualification. Apart from all this, the parties were married on 14.9.1990, as written in the majority opinion, in accordance with the decision of the Sarıoğlan Court of First Instance dated 19.6.2003, 2003/75-75 in accordance with the Main and Decision No. M.K.nun 166/1. in accordance with the article, it was decided that the parties should divorce in order to accept the divorce case filed by the plaintiff Handan Bal. This decision was finalized on 3.7.2003 without recourse to legal remedies. According to the response from Tekstilbank, where the file contains the current joint account, it is explained that a joint account has been opened on behalf of the parties, that one of the parties has the right to close the entire account without notifying the other from the joint account, and that joint and mutual responsibility belongs to them. The dispute centers on whether the case of cancellation of the appeal filed in accordance with the general provisions as a result of the defendant’s objection during the marriage union can be considered as a kind of liquidation of the goods regime, or the amount of this money can be given to the plaintiff, since it is undisputed that the money was withdrawn by the defendant when it is qualified as liquidation of the goods regime. Since the transaction was made in accordance with the scope of the violation declaration, all income of the parties should be investigated taking into account the date of opening the account TMK.nun 152 and 170. considering that the plaintiff’s statement in the petition for the lawsuit and in the other subsequent petition , it is especially necessary to accept that 1/2 of the share has been given to his spouse (a secret donation has been made) within the framework of the general investigation. For the remaining 1/2 of the remaining shares, it is mandatory to conduct research and examinations for the liquidation of the goods regime without defects. Since the case was conducted in accordance with the violation clause as a liquidation of the goods regime, in this case, the cancellation of the appeal does not need to be followed up, a 20% enforcement denial compensation should be decided. Moreover, the defendant’s father in the beginning stages of marriage between the plaintiff dated 30.11.1990 made externally of personal property included in the agreement under contract, which is written according to an external during a divorce, the plaintiff was left in the absence of any objections to these requests and the plaintiff in the trial stages is taken into account that an arrangement exists when external 30.11.1990 dated bonds, with seven of these goods remains in the responsibility of the plaintiff in the case of the plaintiff resides, and so is the subject of the money in your bank account in response to the acceptance that the plaintiff was required.
For all these reasons that I have explained, I have not been able to agree with the opinions of the majority of the Apartment, which are manifested in the form of a definite distortion. For the reasons I have stated and for the amount that is excluded from the secret donation, T.M.K.nun 202. et al. in accordance with Articles 152. and 170. i am of the opinion that research should be carried out taking into account the articles. 13.6.2013
I No. 2004, which was in force on 30.1.2004, when the case for the cancellation of the appeal subject to appeal was opened.I.K.nun 67/2. according to the provisions; in that case injustice, if it is decided to the objection of debtor, if the debtor is viewed in the pursuit unfair and malicious, the creditor upon the request of the other party, both parties in the state, and depending on the patience of the case, perform, red or amount imposed will be down by forty percent, if not sentenced to an appropriate compensation.> The compensation rate in the article of the mentioned law is 11 of the Law No. 6352, which entered into force on 2.7.2012. it has been changed by its substance to twenty percent.
Each case (follow-up) is resolved according to the conditions on the date of its opening. One of the primary principles of the rule of law is that the person or persons who are engaged in a legal transaction should know what they will gain or lose according to the current laws at the end of this transaction. In other words, not knowing the law is not an excuse, there is no place for coincidences and surprises in the legal state, except in cases requiring public interest, when a new situation cannot be created in favor of the other party in a way that is against the other party with subsequent legal changes. Applicants for legal remedies should make a decision by researching and studying the existing regulations.
In the concrete case, I think that it is not correct that the denial compensation, which should be applied as forty percent according to the legal regulation in force as of the date of opening the appeal cancellation case, should be decided by the honorable majority as twenty percent in the violation declaration. I fully agree with the opinion of the majority outside the above-mentioned considerations. 13.06.2013 (¤¤)
