T.R. SUPREME COURT
- Legal Department
Basis: 2016/4219
Decision: 2016/6890
Decision Date: 22.06.2016
REQUEST FOR COLLECTION OF INSTITUTIONAL DAMAGES – IMPOSSIBILITY OF THE IMPOSSIBILITY OF THE PROVISION TO BE TAKEN JOINTLY FROM THE DEFENDANTS AND GIVEN TO THE PLAYER ON THE BASIS OF THE AMOUNT STATED FOR EACH ATTENDANT – H
SUMMARY: Considering the principles regarding the scope of the provision stated in Article 297 of the HMK, the court decided that after the evidence about all the defendants was discussed and their responsibilities were determined, a judgment should be made one by one, with justification, and in a way that would not arouse any hesitation in the execution. Based on the amounts specified by the defendant, it is not correct to establish a judgment with a clear and incomprehensible expression such as “to be taken from the defendants jointly and given to the plaintiff”, and even that no judgment has been made about some defendants, and the decision of the local court had to be reversed for this reason.
(6100 S. K. Art. 297)
Litigation and Decision: In the case between the parties,,,. The Supreme Court’s review of the decision of the Court of First Instance, dated 28.05.2014 and numbered 2012/391-2014/383, which was given by the Court of First Instance, was requested by the attorney of the plaintiffs, the defendant, the Bank’s attorney and some of the defendants’ attorneys, and it has been understood that the appeal petition was submitted within the time limit. After listening to the report prepared by the Investigation Judge for the file and after reading and examining the petition, pleadings, hearing minutes and all documents in the file, the necessity of the job was discussed and considered:
The plaintiffs’ attorney, ,,,,, the defendant, who is a fiduciary in the Central Directorate, has carried out the procedures for starting employment by issuing false documents on behalf of fictitious persons, by including them in the payroll, on their behalf salary, salary difference, additional course fee, training allowance, etc. that he accrued his remunerations, that he opened a bank account on behalf of these people and transferred their salaries to these accounts and embezzled the money by withdrawing the money from the relevant accounts, that the defendant,,, was responsible for the resulting damage, that the protocol signed with the institution was violated, that although a protocol was signed to pay the officers one by one. Claiming that a lump sum payment was made to the defendant, and that the other defendants, with their titles of institution manager, dispatcher, accrual officer, caused the institution damage by not supervising the actions of the defendant, sued.
Defendant. The attorney of ,, argued that the payment of pensions to ,,, was notified with the letter dated 11.01.1993, that the protocol was abolished after this letter, and that the client bank had no fault or responsibility.
The defendant, the attorney, has requested the dismissal of the case, arguing that hostility cannot be directed against his client.
The other defendants and their attorneys defended the dismissal of the case.
According to the judgment made by the court in accordance with the annulment decision of our Chamber, the defendant,,,,. salary difference, additional course fee, training allowance etc. Defendant, who accrued his remunerations, deposited them in the bank and then used them on his own behalf, causing damage to the institution,,. With the partial acceptance of the case, the case was accepted as 10,684.51 TL on the grounds that the defendants, other than the defendants, were liable for the damage of the institution because they did not show the necessary care and attention in the capacity of the accrual officer and the executor, and the defendant was also responsible for the damage caused by the fact that the necessary identity documents and wet signatures were not submitted when opening an account on behalf of fictitious persons. The legal interest to be collected from the defendant and given to the plaintiff as of 16/02/1999, which is the date of the lawsuit (the basic amount of interest is 7.762.14 TL, on the condition that interest is charged to this amount), 2013/617 In essence, with the partial acceptance of the lawsuit, 20, Defendant with legal interest to be accrued as of 16/02/1999, the date of the lawsuit of 67 TL (provided that interest is charged on this amount, the base amount of interest is 6.45 TL). A.Ş, to be given to the plaintiff, with the legal interest of 4.517.06 TL starting from 05/10/2001, the date of the lawsuit (the main interest amount is 3.436.38 TL, on the condition that interest is charged to this amount), the defendants,, for each and every one specified in the expert report. Based on the amounts specified by the defendant, it was decided to take it from the defendants jointly and give it to the plaintiff.
The decision was appealed by the plaintiffs’ attorney, the defendant, his attorney and some of the defendants and their attorneys.
1- The lawsuit, the defendant, ,,,, after completing the initiation procedures by issuing false documents on behalf of fictitious persons during the period of his duty as fiduciary, salary, salary difference, additional course fee, training allowance, etc. It is related to the claim for compensation with the claim that he caused the loss of the institution by accruing his remunerations and withdrawing these payments from the defendant bank. Other persons shown as defendants are those who have worked for certain periods and have signed the forged documents subject to the lawsuit under the title of accrual officer or executor. This too
It has also been stated in the annulment notice of our Department dated 07.06.2012 that the governors may also be liable for the damage of the institution due to the lack of supervision and that an evaluation should be made in this regard. Although the court continued the trial in accordance with the annulment order of our Chamber and the expert report taken for the determination of the responsibility of the defendants was respected, the 297/2 of the HMK No. 6100. A provision has been made to contradict the provision of the article. 297/2 of the HMK. Pursuant to the article “In the conclusion part of the provision, without repeating any word of the justification, with the judgment given about each of the demands, the debts and the rights granted to the parties, under the serial number; It must be shown clearly and without arousing suspicion or hesitation”. Considering the principles regarding the scope of the provision stated in Article 297 of the HMK, the court decided that after discussing the evidence about all the defendants and determining their responsibilities, a judgment should be made for each defendant individually, with justification and in a way that would not cause any hesitation in the execution. It was not correct to establish a judgment with a clear and incomprehensible expression such as “to be taken jointly from the defendants and given to the plaintiff on the basis of the specified amounts”, and even that no judgment was made about some defendants, and the decision of the local court had to be reversed for this reason.
2- According to the reason and form of reversal, it was not deemed necessary to examine the appeals of the plaintiffs’ attorney and some of the appellants and their attorneys at this stage.
Conclusion: For the reasons explained in paragraph (1) above, the judgment has been VOID ex officio; For the reasons explained in sub-paragraph (2), there is no room for examining the appeals of the plaintiffs’ attorney, the defendant’s attorney, the defendant’s heirs, for now; It was unanimously decided on 22/06/2016 that the appeal fee they paid would be refunded to the appellants upon their request.
