General Assembly of the SUPREME Court of Law
2018/502 E.
2018/1049 K.
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the case “prevention of confiscation, decimation and ecrimisil”; Ankara Batı 3. 18.09.2012 day and 201/246 E, which were issued by the Court of First Instance regarding the partial acceptance of the case., 2012/239 K. upon request of the plaintiff and the defendant’s deputies to examine the numbered decision, the decision of the Court of Cassation 1. The decision was approved by the Legal Department before, and after the defendant’s deputy requested correction of the decision, the request was accepted and the approval decision was lifted on 09.12.2013 day and 2013/13861 E., 2013/17433 K. by numbered decision:
“…The case concerns the prevention of confiscation of large-scale real estate, destruction and requests for compensation.
The decision made by the court regarding the partial acceptance of the case was appealed by the parties and approved by the Department, and the defendant requested to correct the decision.
According to the contents of the file and the evidence collected; the case is filed with the petition dated 11.01.2011 Ankara 3. It was filed with the Civil Court of First Instance, the decision on the lack of jurisdiction granted by the said court was finalized on 26.05.2011 without appeal.
As is known, 6100 p. 20 of the Code of Civil Procedure (CMC). according to its article, the court, which makes a decision on non-duty or non-authority, is content to decide that the case file should be sent to the official or authorized court in this decision. He cannot send the case file spontaneously (if you are) to the authorized or authorized court. In order for the case file to be sent to the authorized or authorized court and for the case to be continued in the authorized or authorized court, one of the parties must apply to the court making the decision on incapacity or incapacity and have it notified within a two-week period from the date of finalization of the decision on incapacity or incapacity.
The two-week period here is a violation of rights and is observed by the court personally.
Although the decision on non-authorization in the concrete case was finalized on 26.05.2011, Ankara 3. It is seen that the file was sent to the authorized Xinjiang First Instance Law Court by the letter of the First Instance Law Court dated 27.05.2011.
As it stands, HMK’s 20/1. considering the article, it should be decided that the case should be considered unsolved, while it is not correct to judge the merits of the work …”
the grounds were overturned and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
The case concerns the prevention of confiscation of real estate, demolition and ecrimisil requests.
The deputy plaintiff requested that a part of the real estate owned by his client be used as a service area by the defendant without permission, preventing unfair disposal and destruction, and determining the damage suffered by the plaintiff and deciding on its collection.
The defendant’s deputy appealed for authority, stating that the real estate is located in Etimesgut, therefore the Xinjiang Courts are authorized.
Ankara, where the case was opened, 3. The Civil Court of First Instance issued a decision of no jurisdiction on the grounds that the competent court is the Courts of Xinjiang, the place where the real estate is located, and after the decision was finalized without appeal, the file was sent to the competent court, Xinjiang 3. As a result of the trial held in the Court of First Instance, it was decided to partially accept the case.
If the decision was approved by the Special Chamber first upon the request of the attorneys of the parties to appeal, but this time the decision to approve it was lifted after the defendant’s attorney went to the way of correcting the decision, and it was overturned on the grounds contained in the title section above.
The provisions of the law to be applied by the Local Court in the event are the provisions of the Civil Procedure Code No. 1086 in force on the date of finalization of the decision on unauthorized use, 193 of the HUMK. according to the article, decision on jurisdiction of the file to be sent to the competent court authorized (or unauthorized) of application to be made to the court as a rule, will be made by a petition, but the petition is not foreseen to be a way to contact, within the ten-day period authorized (or unauthorized) of the notification to be made by the court on payment of the expenses that are necessary and sufficient, this is not done within the ten-day period of notice; it is not also being delayed case of unopened to be counted, in a concrete case, the decision to resist was made on the grounds that the plaintiff had applied to the court within the legal ten-day period to deposit the invitation notification expense and fulfilled the legal regulation requirement.
The decision to resist was appealed by the plaintiff and the defendant’s deputies.
The dispute before the General Assembly of Law through resistance is: whether the application to be made to send the case file to the competent court upon the finalization of the decision of unauthorized application must be filed by petition, whether the notification expense invested is considered sufficient, whether the request to send the file to the competent court within the period of the plaintiff’s attorney in the concrete case is made in accordance with the conclusion, and whether the conditions for the case to be considered unopened are met.
It should be noted immediately that the case was filed on 12.01.2011, when the Civil Procedure Code No. 1086 (HUMK) was in force, and the Civil Procedure Code No. 6100 (HMK) entered into force while the case was pending.
Since the provisions of both laws contain different regulations on the proceedings to be taken in order for the trial to be continued in the competent or authorized court upon the decision of incapacity or incapacity, it is necessary to determine which provisions of the law should be applied to the incident first in order to resolve the dispute.
As is known, the basic principle that applies in the field of procedural law is the immediate entry into force of the provisions of the law on the trial. The reason for the adoption of this principle is that the procedural provisions are closely related to public order.
Another aspect that should be taken into account together with the rule of immediate applicability in the implementation of the procedural rules in terms of time is whether the relevant procedural process is completed when the new procedural rule enters into force. Because if a new rule takes effect after a procedural action has been completed, the completed action remains valid. In turn, if a procedural transaction has not yet been completed, the new law, as a rule, will enter into force immediately.
As a matter of fact, HMK No. 6100, which entered into force on 01.10.2011, has the title “implementation in terms of time” 448. the substance;
“The provisions of this Law shall be applied immediately, provided that they do not affect the completed transactions. it contains the provision “.
For this reason, in order to determine the provisions to be applied to a concrete dispute, it should also be mentioned whether the transaction subject to the dispute is a “completed procedural transaction”.
It should be noted that the case consists of several procedural actions and stages that begin with the filing of the petition to the court and continue until it concludes with a decision (or verdict). Each procedural action during the trial must be considered and evaluated individually. It is impossible to evaluate a case as a whole and say whether the new law will be effective in this regard. If a procedural transaction and cross-section made during the trial have been completed, the new law will no longer be effective on that procedural transaction and therefore will not be applied.
If a procedural procedure begins to be performed during the trial and is completed, and then a new procedural rule comes into force, then this procedure remains valid. In other words, completed procedural transactions are not affected by the newly enacted procedural provision (or law).
Considering the concrete incident within the scope of all these explanations, the case is Ankara 3 at the time of HUMK No. 1086. It was filed in the Civil Court of First Instance and was filed on 07.04.2011 day and 2011/17 E., 2011/127 K. by the numbered decision, it was decided that the court was not authorized, that the decision should be finalized and that the file should be sent to the competent court upon request. The aforementioned decision was notified to the party’s deputies and was finalized on 26.05.2011 without appeal. Therefore, the period during which the dispute resolution procedure should be performed has expired on time with HMK 1086, which was in force at that time, before HMK 6100 entered into force. As such, there is no doubt that the provisions of the law that should be applied to resolve the dispute are the relevant provisions of the CMB.
27 of the relevant Law No. 1086. the article states that “If the court decides to reject the wishful thinking of the case because it is not its duty or duty, it sends the wishful thinking and the case file to the court to which it belongs and no fee will be charged again. it contains the provision “.
193 of HUMK. item;
“The plaintiff is obliged to organize and submit a new petition in place of the petition that has been decided to be canceled.
Upon making a decision on incapacity or incapacity, the plaintiff is obliged to notify the other party in an authorized or authorized court.
In both cases, a re-petition or a re-call paper must be submitted within ten days from the date of finalization of the decision.
Otherwise, the case will not be considered filed. The discrete provisions specified in the law are reserved.” he is in charge of his judgment.
In accordance with the provisions of the aforementioned article, the court making an unauthorized decision is content to decide that “the case file shall be sent to the competent court upon request” in the unauthorized decision. He cannot send the case file to the competent court on his own. In order for the case file to be sent to the competent court and the case to be continued in the competent court, the plaintiff must apply to the competent (or decision-maker of the unauthorized) court on petition within ten days from the date of the final decision on the unauthorized decision, or have the defendant notified by issuing a call sheet. Otherwise, the case will not be considered filed.
The period of application to the authorized or authorized court is ten days, and this period is an unfair one. Therefore, it must be observed by the court itself.
An application to an authorized (or unauthorized) court is by a petition. However, no form has been provided for this petition in the HUMK. This petition is not a lawsuit petition, and the petition asks for the necessary actions to be taken to ensure that the case is heard in the competent court.
It is necessary and sufficient to pay the cost of notification to the counterparty and the cost of sending files, if any, by contacting the authorized (or unauthorized) court within the said ten-day application period.
The plaintiff can also make an application before the decision on unauthorized access is finalized, that is, the ten-day application period has not yet begun to process, this application is also valid. Likewise, there is no provision of the law preventing this.
As mentioned above, if the authorized (or the one who made the decision of unauthorized) court is not contacted by petition or the call sheet is not issued within ten days from the date of finalization of the decision of unauthorized access, the case is considered to have not been filed.
When the concrete dispute is evaluated in the light of these explanations; Ankara 3. Issued by the Court of First Instance on 07.04.2011 day and 2011/17 E., 2011/127 K. it is understood that the decision on the unauthorized decision was finalized on October 26, 2011, the said court sent the file to the authorized Xinjiang Court of First Instance with the letter dated April 27, 2011, although the petition containing the request to send the file to the authorized court by the plaintiff’s attorney is not included in the case file, the notification expense necessary to notify the other party in the authorized court from the statement attached to the submission letter was deposited by the plaintiff. In this case, the 193rd edition of the HUMK. it is clear that the procedural procedure provided for in the article was carried out within the ten-day period of deprivation of rights, and the conditions for considering the case as unsolved did not occur.
As such, the decision to resist is in place, which addresses the issues described above and recognizes that the conditions for the case to be considered unsolved in accordance with Article 193 / last of the HUMK have not been established.
However, according to the reason for the violation, since other appeals against the merits of the case have not been examined by the Special Department, the file must be sent to the Special Department for review in this direction.
S O N U O : It is appropriate to resist for the reasons described above, and to review the appeals of the plaintiff and the defendant’s attorneys on the merits of the case 8 of the file. It was unanimously decided to SEND it to the LEGAL DEPARTMENT on 09.05.2018, within fifteen days from the date of notification of the decision, the way to correct the decision will be open.
