SUPREME COURT 12. law office
MAINLY NO : 2018/47
DECISION NO : 2018/6880
Regional justice above date and number writing in examination by the plaintiffs requested a decision by the court this term temyizen on work-related files have been sent to the apartment and rested for the audit report to file a claim held by a judge, and all the documents in the file is read and analysed, after it was thought that the nature of the business discussed :
in parallel with the Law of 26.9.2004 and 5235 on the Establishment, Duties and Powers of Courts of First Instance of Judicial Jurisdiction and Regional Courts of Justice, the Law of 18.3.2005 and 5311 on appeal and appeal, amending the provisions of the Enforcement and Bankruptcy Code of 2004 on appeal and decision correction, and amending the provisions of the temporary 7 added to the Enforcement Bankruptcy Code.according to the article, the provisions of Law No. 5311 are applied to decisions made after 20.07.2016, when the District Court Courts began to function.
342/3 of the Code of Civil Procedure No. 6100. in its article; “If the petition of appeal carries records that will adequately indicate the applicant’s decision with the applicant’s identity and signature, even if there are no other considerations, it should not be rejected, 355. the necessary examination is carried out within the framework of the article.” according to the regulation of the same Law No. 355. as for the article; “The examination is carried out limited to the reasons specified in the petition of appeal. However, if the district court of justice considers a violation of public order, it will officially observe this”regulation 352/1 has been included. it is also stated in the article that the necessary decision will be made if the application conditions are not met or the reasons or justification for the application are not shown at all.
In a concrete case, the decision made by the executive court was interpreted to the debtor’s deputy at the hearing dated 03.01.2017, the debtor’s deputy’s IIK 363. in accordance with article 342/3 of the HMK within its term (i.e. 12.01.2017 day). it is observed that he filed a petition for the duration of the appeal in accordance with the article, the debtor’s deputy did not submit his petition containing the grounds for the appeal within a 10-day period, even though the reasoned decision of the court of first instance was notified on 08.02.2017.
In this case, the work to be done by the district court of justice will be carried out in accordance with Article 342/3 of the HMK.as stated in Article 355 of the HMK, without rejecting the petition of appeal. according to the article, it is limited to public order inspection. If a violation of public order is not detected in the court decision being examined, it will be necessary to decide on the substantive rejection of the request for appeal in accordance with Article 353/1-b-1 of the HMK, since an examination of the merits of the work will be conducted.
Then, according to HMK’s 353/1-b-1, according to which it was found that there was no violation of public order in the decision of the court of first instance under consideration, although a petition for an appeal period was filed with the district court of justice during the period. according to Article 352 of the HMK, the request for an appeal must be rejected on the basis of the merits. according to the article, procedural refusal is unjustified.
CONCLUSION : Gaziantep Regional Court of Justice 12. The date of the Law Department is 25/04/2017 and the date is 2017/1116 E. – 2017/1101 K. 364/2 of the IIK amended by Law No. 5311 for the reasons set out above in its decision No. article 373/2 of HMK No. 6100, which must be applied by sending. according to the articles (ON ITS DETERIORATION), according to the reason for the deterioration, there is no place for examining appeals at this stage, the file was sent to the District Court of Justice, which made the decision, it was unanimously decided on 27/06/2018.
