The case of liquidation of the partnership is a double-sided (actioduplex) case.
Both parties will benefit from the decision to be made in the case of liquidation of the partnership.
Due to this feature, the procedural provisions that will be applied in the case as well as in the case of both the plaintiff and the defendant in the case are also HUMK.561/570.it is specially indicated by its substances. As a matter of fact, in the doctrine of the Procedure, 561 and 568. 569 of these rules, which are collected in their articles. it is suggested that they should be considered as special procedural rules that will be applied to cases that will be opened in accordance with the article.
In this respect, although the plaintiff wants the partnership to be eliminated only through the sale, if the defendant requests the partnership to be eliminated through the same installment plan and it is understood that the conditions are also available, it is undoubtedly that the court may decide to eliminate the partnership by installment plan.
It is not possible to eliminate the partnership of a part of the share in the immovable property. No Need M.K. according to both the provisions of the Law and the Procedural Provisions, only the entire partnership of one property may be requested to be eliminated.
he has established the rule about the way of sharing items. Accordingly, if it is possible to divide and divide exactly, the judge will make a decision on the sale by auction if it is not so.
This article of the law is of a supervisor nature. Article 703 /last article of the same law also provides for the rule that sharing of property in cooperation is carried out in accordance with the provisions of shared ownership, unless there is a provision to the contrary,
In joint ownership, each stakeholder has the right to request the termination of the partnership status at any time in terms of their own share. This right is enshrined in Article 698 of the Civil Code. it is clearly stated in its article.
Also (E.) Article 627 of the Civil Code. article 628 of the limits of this right. in the article, the procedure to be applied to ensure the termination of the partnership is shown. (E.) Article 627 of the Civil Code. if one of the conditions limiting and preventing the elimination of the partnership is not present in Article 628 of the same Law. it is necessary to decide on the elimination of the partnership by applying the procedure in the article.
(E.) Article 627 of the Civil Code. cases that prevent the elimination of partnership in the article,
1 – Legal savings,
2 – Allocation of real estate for a permanent purpose,
3 – It is the case that the installment is requested and made at an inappropriate time.
Of these, legal savings are the agreements of the stakeholders on the obligation to continue the partnership for no more than 10 years. By this agreement, the stakeholders, all stakeholders or a certain stakeholder are deemed to have stopped the right to opt out of the stakeholder. This connects the deal-makers and those who have acquired shares through the IRS. in our case, there is no Decency in the current construction contract between the parties that an agreement has been made in this way. In the absence of a clear provision, the existence of an agreement of this type is unacceptable. Since the main purpose of the current agreement is to carry out construction, the bet is that the partnership will continue until construction is completed, which is not in place. Because the free will of the parties is united only in the status to be applied in the conclusion of a construction contract and in the event that this construction is not carried out, and they are not united in the continuation of the partnership. It is not possible to interpret the construction contract in this way. the legal consequences of the construction contract are determined by law. It is contrary to the provisions of the law to accept that these legal consequences determined by law will have a legal result determined by law, except again.
The allocation of real estate for a permanent purpose means that the stakeholders can use the common property in accordance with the purpose for which it is allocated. As an example, the wall between two immovable properties, the road for multiple immovable Dec, the well, the fountain or the facilities that provide heating of separate buildings from one place are of this nature.
The fact that one stakeholder enters into a construction contract with another stakeholder for the construction of a building on a common property cannot be considered as a permanent allocation of immovable property. Building is not an allotment, nor does it provide a permanent nature. After the legal results of the construction contract have been obtained, the floor easement to be established cannot be considered as a permanent allocation of real estate for a permanent purpose, as the provisions of the Law provide for a certain right of ownership in the apartment. Moreover, according to the Condominium Law, the sale of apartments that are subject to easement and condominium ownership is also always possible.
As for the sale of immovable property at an appropriate time; this provision was made in order to prevent the stakeholder who wants to exit the partnership from using this request in a way that will be harmful to the other stakeholder. 2 Of the Civil Code. it consists of a special application of its substance. For this reason, it is not appropriate to accept the appropriate time as the time when the real estate can be sold at the highest price. There may be stakeholders who are harmed by this high sale due to the lack of appropriate time. However, stakeholders cannot be asked to wait for a period exceeding the agreed period. The request of the injured stakeholder to eliminate the partnership must be accepted if the state of damage has disappeared or the usual period of time has elapsed. As a result, the appropriate time is determined by measuring the interests of both parties and Article 4 of the Civil Code. it fulfills the determination by using the right of discretion in the article. There are even those who argue the opinion that a certain time will be appointed not by the judge, but by the salesperson during the sale.
In cases of liquidation of the partnership, if the stakeholders are alive, their heirs, who will be determined by the probate document to be submitted if they are dead, must be included in the case, thus being a party.
However, as a rule, the right to file a lawsuit for the liquidation of the partnership was granted to the stakeholder in the shared ownership, and the heir in the joint ownership, the right to request a share (to file a taksim lawsuit). No one who is not the owner has been granted the right to request and participate in the sharing. For example, Article 612 of the Civil Code, Article 677 of the Civil Code. although the articles provide for the possibility of concluding a contract with a third party on the assignment of a share of inheritance, this does not give anyone the right to participate in the share. In that case, it is not possible for anyone who is not a stakeholder to file a sharing (taksim) lawsuit.
Article 588 of the Civil Code. according to the article, the creditor who has an execution certificate stating that he is unable to pay the debt due to or against that heir or who has foreclosed on the share belonging to an heir may request the judge to participate in the installment plan, being a resident instead of an heir.
It also covers the right to request participation in the installment (case). Since the right to file a share lawsuit belongs to a stakeholder or heir, and it cannot be expected to file a lawsuit that results in the collection of the receivable from an heir who has not paid the debt, this judge is recognized as a judge by the aforementioned article of the law, the judge authorized the creditor to file a lawsuit instead of the debtor’s heir, and the creditor also filed a taksim lawsuit based on this authority received from the judge.
648 of the Turkish Civil Code, since the legislator does not consider such a situation appropriate. a new provision has been introduced with its article, an arrangement has been made in such a way that the creditor can ask the magistrate to appoint a register to participate in the sharing. Accordingly, the creditor will ask the magistrate to appoint a register to participate in the sharing, when a register is appointed, the register will file a claim for the elimination of the stakeholder (taksim), the case will be continued and concluded with the peace of the register. It is necessary to correct the lack of registration of the case filed in accordance with the previous practice, without going to the path of refusal, after which a decision should be made.
The person who is the creditor of the debtor who has a share in the property subject to the ownership of the partnership will file a lawsuit against all the partners of the partnership in which the debtor will also be based on the authority he will receive from the Executive Court and conclude this case; the right to file a lawsuit here is not granted to a judge or other person, only to the heir or IIK from the Executive Court.No. 121. in accordance with the provision of the article, it is granted to the creditor who has received the authority to file a claim for the liquidation of the partnership.(5)
The creditor of the subsidiary partner may also file a claim for the liquidation of the partnership for the immovable property of which the debtor is a partner on the basis of the authorization document that he will receive from the Executive Audit Authority. according to the Decision of 14.4.1943 days and 15/48 to Merge the Case Law, it is mandatory to obtain the authorization document from the Executive Inspection Authority. The Bailiff does not have the right to issue such a certificate of authority. If a lawsuit is filed directly or based on a document provided by the Bailiff without obtaining a document from the Supervisory Authority, the case is not dismissed, the plaintiff must be given time to obtain the necessary document from the authorized body.
In the event that a claim for the liquidation of the partnership is filed by the creditor, it is mandatory that all subsidiary partners, including the debtor partner, are included in the lawsuit.
According to the provisions of the Minimum Wage Tariff for Lawyers for the benefit of stakeholders who represent themselves by proxy in stakeholder elimination cases, the victim’s proxy fee should be appreciated.
Cases of elimination of the stakeholder (partnership) are bilateral, cases with similar consequences for the parties. In these cases, the defendant has the same rights as the plaintiff. Therefore, the plaintiff’s desire to share by selling does not prevent the defendants from wanting to share in kind.
In order for the court to decide on the division of the property exactly in order to eliminate the stakeholder’s cases, it is necessary to investigate the area, nature, number of shares and stakeholders of the real estate and the nature of agricultural land, as well as whether it is possible to divide it exactly according to the zoning legislation. If there is a significant depreciation of the immovable property, it cannot be decided to divide it by dividing it exactly. Also, a part of the real estate cannot be left without a share if the stakeholders do not give their consent.
If it is possible to divide (divide) exactly by dividing, if the values of the divided parts do not coincide with each other, the missing part is equalized by adding money (ivaz) to the missing part. Unless there is an agreement between the stakeholders in the case, the judge cannot decide to share some real estate spontaneously by dividing it exactly into a Dec of giving some of the real estate to the stakeholders and the rest to other stakeholders.
Exactly share by dividing (taksim) technical expert to excrete (taksim) taken out by the project according to this project, immovable or adjacent area within the borders of the municipality, the Municipal Council of the municipality upon a resolution of the municipality’s zoning laws and regulation according to bolusmen from outside the county administrative board (cab) is asked whether it is possible. If the stakeholders cannot agree on who will be given to whom in the Ifraz project, it is determined by drawing lots in the presence of a judge.
If there is a negative response from the approval authority, it should be decided to eliminate the stakeholder by selling.
