T.C
SUPREME
GENERAL ASSEMBLY OF LAW
Date: 28.02.2018 Basis: 2017 / 2648 Decision: 2018 / 3070
The law was examined by the General Assembly and discussed as necessary after it became clear that the decision to resist was appealed during the period and the documents in the file were read:
The main case is based on the reason for the “actual separation” contained in Article 166/last of the Turkish Civil Code (TMK) No. 4721, and the merged case is based on Article 166/1 of the same Law. it refers to the request for divorce based on the reason for the “shaking of the marital union” contained in the article.
The plaintiff’s united defendant (male) deputy stated that the parties did not meet after the decision of the divorce case that resulted in rejection was finalized, and this period has passed 3 years, and requested that a decision be made on their divorce in accordance with Article 166 /dec of the Turkish Code of Civil Procedure.
The acting plaintiff (woman), who joined the defendant, stated that there was severe decency between the parties for reasons arising from the plaintiff, stating that TMK 166/1. in accordance with the article, he requested that their divorce be decided.
The plaintiff (male) deputy of the merged defendant and the plaintiff (female) deputy of the merged defendant have separately argued for a decision to dismiss the cases.
That resulted in the rejection by a local court from the finalization of the divorce, the parties come together, they didn’t, the final court decision, according to the plaintiff of the defendant is flawed, it becomes clear that combined, the loss of the woman of the man, his personality violates the rights of, and thus not shaken the foundation of marriage filed by the Union on the grounds that both parties upon the adoption of the combined defendant, the plaintiff (the women) for the benefit of 20.000,-TL material, 20.000,-TL non-pecuniary damages 600,-TL, it has been judged to measure and alimony.
The decision on the appeal of the defendant’s male deputy, who joined the plaintiff, was overturned by a majority of votes of the Private Office on the grounds described above.
In addition, the decision to resist was made on the basis that the plaintiff’s request was met according to the three-year separation process, the defect situation was determined according to the previous court decision, which was finalized, and the plaintiff appealed to the defendant (male) deputy who joined the decision to resist.
“…297 of the Law Code of Civil Procedure No. 6100 (HMK). as stated in the article, the judgment result in part of the grounds given again without any mention of debt and requests about each of the rights recognized under the provisions uploaded by the sequence number of open-doubt and hesitation must be shown in a way that does not attract. As written above, since there is a contradiction between the first decision that was overturned and the decision to resist, in order to establish a procedural resistance provision by the local court, the decision had to be decriminalized without examining the appeals against the merits of the work …” the decision to overturn was made by a majority of votes.
The decision to resist, which was made by the local Court in compliance with the decision to overturn the General Assembly of the Supreme Court of Law, was appealed by the male deputy of the defendant, who joined the plaintiff.
Considering that the witnesses shown by the man in the divorce case filed by the woman due to severe lack of livelihood have not been refused rest, the dispute that has come before the General Assembly of Law by way of resistance is being collected by the court at the point of whether these witnesses should not be listened to.
Before examining the merits of the work during the negotiations held at the General Assembly of Law, it was discussed as a preliminary issue whether the decision on appeal is actually a new provision; therefore, whether the appeal review should be carried out by the General Assembly of Law or by the Private Department.
As it is known, in order to mention the existence of a decision to resist, the court should decide within the framework of the evidence before collecting any new evidence inspired by the decision to overturn it; although it can expand its justification according to its previous decision, it should not change it.
In other words, if the court has decided by changing its justification based on new evidence or inspired by distortion, or by considering a point that it has not previously focused on in the manner indicated in the distortion, there can be no mention of the existence of a decision to resist.
In a concrete case, in the first decision of the court, it was determined that the previously filed lawsuit and the defendant man who joined the plaintiff were defective, the defendant man who joined the plaintiff despised the plaintiff woman who joined the defendant, violated her personality rights, and thus shook the marriage union, the parties did not meet after the rejection of the divorce case, in response to the decision to accept the lawsuits filed by the parties, the rest of witnesses in the decision to resist dated 02.06.2016 will not be effective dec the result, therefore, it was stated that after the decision was not in place after the marriage of the parties, the combined plaintiff the defendant, the plaintiff of the defendant the necessary attention she’s shown love and affection combined, according to a report from the Forensic Medicine Institution, a spiritual and does not enter into a sexual relationship with her, even though organic is not an illness, and are thus full of the imperfect man by avoiding their obligations, and the female one was by explaining that the previous decision stand is perfect.
Accordingly, it should be recognized that the decision on appeal, which the court calls resistance, is not a real decision on resistance in the sense of procedural law; it is a new provision based on a new justification that was not discussed and evaluated in the first decision.
In this case, the task of examining this new provision on appeal belongs not to the General Assembly of Law, but to the Special Department.
Therefore, the file should be sent to the Special Chamber for the consideration of appeals against the new provision.
CONCLUSION: 2 of the file for the examination of the appeals of the plaintiff’s deputy, who joined the defendant for the reasons shown above, against the new provision. It was unanimously decided on 28.02.2018 to SEND it to the LEGAL DEPARTMENT.
