SUPREME COURT 13. Legal Department 2016/2647 E., 2016/12131 K.
At the end of the trial of the case for the cancellation of the appeal between the parties, a summons was sent to the interested parties after the defendant’s lawyer appealed the decision to partially accept and partially reject the case for the reasons written in the application without a hearing by the plaintiff’s lawyer dec the defendant’s lawyer. On a certain day, the hearing was started with the arrival of the deputy counsel for the defendants and the plaintiff Asil who appealed, and after hearing the oral statements of the lawyer and the party present, it was left for another day for a decision. This time, the file was examined, it was determined that the appeal petition was in due course, and it was discussed and considered as necessary.
decision
The plaintiff requested that the appeal be canceled and 40% compensation be decided, claiming that the fee due to be paid was not paid in accordance with the attorney’s fee agreement concluded between the defendants and Murisi was unfairly dismissed, and the enforcement proceedings initiated to collect the receivables were decried.
The defendants asked for the case to be dismissed, arguing that their muris did not have a legal license.
The decision to dismiss the case was overturned by our Department’s decision No. 2012/8048 / 2012/2583 dated 7.2.2013, as the court did not have a driver’s license on the date of the murisin contract, and it was decided to partially accept and partially dismiss the case in accordance with the court’s decision to overturn it; the decision was appealed by the plaintiff and the defendants.
1-According to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, the plaintiff must reject all the other appeals of the defendants.
2-173/2 of the Law on Advocacy. in its article, “All taxes, pictures, fees and expenses necessary to perform the work entrusted to the lawyer or to obtain its result after it is done are under the responsibility of the business owner and are paid by the lawyer to the lawyer at the first request or where necessary. In order for these expenses to be made by the lawyer, sufficient advances must be made by the business owner.” In accordance with this provision, all costs necessary for the performance of work must be considered as the presumption that the business owner paid the lawyer at the beginning of the work, the lawyer who claims otherwise, in other words, claiming that he did not receive an advance on expenses from his client, must also be considered liable for proving this claim. Since the plaintiff’s lawyer did not fulfill this obligation of proof that “the costs were not taken at the beginning of the work” in the case under consideration, it should be accepted that the costs related to the cases were given to the lawyer at the beginning of the work, while the court decided that the trial cost of 1.461.90 TL contained in the court’s decision to be included in the claimant’s lawyer’s receivable is contrary to the procedure and law and requires a reversal.
3-The plaintiff has conducted enforcement proceedings against the defendants who are the heirs of Melahat E… for the collection of the portion not paid by the defendant’s muris due to the legal service provided to the defendant’s muris, and has requested the cancellation of the appeal and denial compensation upon appeal. The court decided to cancel the appeal with partial acceptance of the case and to collect the 40% execution denial compensation of TL 12,431.90, which is the non-accepted part of the receivable, from the defendant heirs. Article 67/3 of the IIK provides that ”if the objecting parent, guardian or heir is entitled to compensation against the debtor, it depends on the extent of bad faith”. In the concrete case, it was alleged and could not be proved that the defendant objected to the pursuit in bad faith. As a result, the refusal of the executive denial compensation claim by the court is the reason for violating the provision in writing, which is contrary to the procedure and law.
CONCLUSION: for reasons that are described in the first paragraph above, the plaintiff appeals all the defendants appeal the denial of the poet, for reasons that are described in the second and third paragraphs, the decision corruption for the benefit of the defendants, the plaintiff and the defendant is taken from trial attorneys TL 1350,00 of money to be paid in advance, the plaintiff appeals retrieved 141,60 TL mortar, the mortar in advance at the request of the extradition of a defendant who appeals TL 387,10 retrieved, it was decided by consensus on 03/05/2016 the day.
