T.R. SUPREME COURT
- Law Office
Basis: 2016/3774
Decision: 2016/7793
Decision Date: 13.06.2016
ACTION FOR DAMAGES – THE START DATE OF THE TIMELINESS SHOULD BE DETERMINED AS OF THE DATE WHICH WAS ACCOMPLISHED BY THE APPLICANT – WHEN THE LIMITATION PERIOD HAS EXPIRED – REQUESTED DEPARTMENT MANAGEMENT REVIEW
SUMMARY: The plaintiff’s damage is …./…./…. and the starting date of the statute of limitations should be taken as this date, in which case the correctional petition was submitted ………. As of this date, the statute of limitations of 1 and 2 years, regulated in Articles 60 of the BK and 72 of the TCO, has passed. Since the defendant has filed a statute of limitations against the correction in due time, it should be rejected due to the statute of limitations in terms of the department requested with the correction, but since it was understood that the acceptance was not correct, and it was understood that the decision was approved when it should have been reversed, the defendant’s attorney’s request for rectification should be accepted, the approval decision of our Chamber should be revoked and the decision should be reversed.
(6100 S. K. Art. 107, 109) (6098 S. K. Art. 72) (818 S. K. Art. 60)
Litigation and Decision: The day and number of the above-mentioned decision given by the local court due to the compensation lawsuit between the parties; It was decided to approve our flat with the decision numbered .. 440-442 of the HUMK, although the defendant’s attorney requested the correction of the decision in due time. The report prepared by the investigative judge and the papers in the file were examined and discussed.
1- In the face of the compelling reasons stated in the appeal notice, the defendant’s request for correction, which does not comply with any of the reasons listed in the amended Article 440 of the Code of Civil Procedure, which is outside the scope of the paragraph below, should be rejected.
2- As for the defendant’s request for correction of the other decision;
The case is related to the request for the collection of the material damage suffered due to the wrongful attachment. The plaintiff party, due to the debt of his son out of action, who is the debtor of the proceedings, stated that the defendant, who is the debtor of the proceedings, made a lien at his workplace, claimed remuneration, that the creditor was given time to file a lawsuit in the enforcement court by the enforcement court, and that the lien was lifted because the defendant did not file a lawsuit. demanded the collection of the expenses incurred by the defendant due to his inability to use it and to get the belongings from the trustee.
Correction is one of the exceptions to the prohibition of expanding and changing the claim and defense, and is defined as a partial or complete correction of a procedural act by one of the parties. With the amendment, the parties can change the reason for the lawsuit, the subject of the lawsuit or the result of the request. It is possible to rehabilitate the case in whole or in part, provided that there is a lawsuit filed in accordance with the procedure.
Changing the reason for the lawsuit or the subject of the lawsuit is completely corrective. (Baki Kuru Vol. 4 p. 3990). In the partial improvement of the case, there is a correction of a procedural action after the petition. As accepted both in the doctrine and in the Supreme Court practices, in case of increasing the muddeabihi (litigation value), partial improvement is in question, and in partial reformation, all procedural actions made until the date of correction are not considered as opposed to complete corrections. It takes effect prospectively from the date of partial correction. The statute of limitations is not a phenomenon that eliminates the debt, but is a defense tool that eliminates the desirability of a born and existing right. For this reason, the statute of limitations does not eliminate the existence of the claim, but its desirability. In Article 133 of the BK, the reasons for cutting the statute of limitations are listed and one of them is filing a lawsuit. Since the case has been rehabilitated from the beginning (from the date of the lawsuit), the statute of limitations for the reformed part is terminated on the date the case is filed.
In a partial lawsuit, the statute of limitations is cut only for the part that is sued. The statute of limitations continues to run for the section that has not yet been opened (reserved) and then increased by breeding.
As a matter of fact, it has been accepted that the result of the claim can be increased without the prohibition of the extension of the claim of the plaintiff and without the consent of the other party and without the need for correction in the case of indefinite debt action and determination, which was regulated in Article 107 of the HMK No. 6100, which entered into force on 01/10/2011. With the lawsuit, it was stated that the statute of limitations would be terminated on the date of the first lawsuit. In the partial lawsuit in Article 109 of the same Law, there is no explanation that the statute of limitations will be interrupted.
According to the provisions of the Code of Civil Procedure published by .., who took part in the preparation of the Law No. 6100, on page 321 of the Civil Procedure Law Book, “In cases where it is possible to file a lawsuit for indefinite debt, filing a partial lawsuit will not be more convenient for the plaintiff for three reasons. First, the statute of limitations for the remainder of the claim of the plaintiff, who has filed a partial lawsuit, will not be interrupted. On the other hand, the statute of limitations in the case of indefinite receivables
a will be deemed to have been cut on the date of the lawsuit for all of the receivables. Secondly, if the plaintiff, who filed a partial lawsuit, wishes to claim the remainder of the claim during the lawsuit, he/she will only be able to do so with the clear consent of the other party…” It is understood that the stable practice that the statute of limitations will be cut only for the section sued in case of a lawsuit is continued.
Considering the concrete event in the light of these explanations; It is understood that the tortious act occurred on 18/05/2010, and the seized goods were delivered to the plaintiff on 01/10 2010, since the defendant creditor did not file a claim for compensation.
In this case, the plaintiff’s loss has occurred as of 01/10/2010 and the start date of the statute of limitations should be taken as this date, in which case the 1 and 2 years regulated in Articles BK 60 and TBK 72 as of 16/04/2013 when the petition for improvement was submitted. the statute of limitations has passed. Since the defendant has filed a statute of limitations against the correction in due time, it should be rejected due to the statute of limitations in terms of the department requested with the correction, but since it was understood that the acceptance was not correct, and it was understood that the decision was approved when it should have been reversed, the defendant’s attorney’s request for rectification should be accepted, the approval decision of our Chamber should be revoked and the decision should be reversed.
Conclusion: Article 440-442 of the Code of Civil Procedure. With the acceptance of the defendant’s attorney’s request for rectification for the reasons indicated in the paragraph (2) above, in accordance with Articles of Association, the approval decision of our Chamber dated 12/11/2015 and numbered 2014/14697 – 2015/12884 is lifted; On 13.06.2016, it was unanimously decided to reverse the decision for the reasons stated above, to reject the defendant’s other requests for correction of the decision for the reasons stated in paragraph (1), and to refund the fee received with our previous approval decision from the defendant requesting correction of the decision, and the decision correction fee, upon request.
OBJECTIVE VOTE
According to the HUMK numbered 1086, Islah is the correction of a procedural action made by one of the parties, in whole or in part (art. 83).
Since the principle of unification of claim and defense is valid in our Civil Procedure Law and it cannot be changed without the consent of the other party, it is a way improvement institution that can be applied by the party who wants to change or expand his claim or defense.
The subject of the correction; It is a procedural treatment, and the party doing this can change the reason for the lawsuit, the claim and the result of the request. However, the muddaabih cannot be increased and the sides cannot be changed (art. 87)
However, since the Constitutional Court annulled Article 87 of the HUMK with its decision dated 20/07/1999, the way to increase the plaintiff in the case by way of improvement has been opened.
Correction can be made until the end of the trial (art. 84) Correction; It is made with a unilateral and clear statement of will by one party against the court in writing or, if the other party is ready, verbally. The correction is not dependent on the court’s or the other party’s acceptance.
In the lawsuit filed by the plaintiff, who does not know the exact amount or value of the receivable-damage or its value, the plaintiff may sue this part by amending this part according to the 84th article of the HUMK, according to the result of the proceedings, when the value of the lawsuit is more than the value stated in the petition during the trial. This part does not constitute an additional lawsuit.
Time out; It is a defense in its legal nature and does not abolish the debt itself, but eliminates the right to sue due to the debt.
The lawsuit is subject to the statute of limitations on the date it was first filed, and there will no longer be a statute of limitations for the portion requested with the amendment. These matters are for cases where it is not possible and objectively impossible to determine the exact amount and value that the creditor will sue, but not for cases where the amount of the case is known or can be determined.
In the petition, the claim was made without prejudice to the rights regarding the surplus; After the expert report, it was increased as a result of the request by giving a correction petition.
The claim put forward by the plaintiff in the correction petition is not in the nature of a new lawsuit, but in the form of increasing the result of the request in the lawsuit petition. For this reason, the statute of limitations objection, which can only be brought against the petition, cannot be brought forward against the rehabilitation. Correction is regulated in the 176th and the following articles of the Civil Procedure Law No. 6100, which entered into force on 01/10/2011. 177/1 of the aforementioned Law. It is clearly regulated in the article that the correction can be made until the end of the investigation. In this case, a statute of limitations cannot be made against the correction. Because reformation is not a new lawsuit, it is only a change made in the lawsuit petition.
In practice, over time, this excess of the plaintiff, within the prohibition of extending the case, against the freedom of seeking rights, in order to eliminate the situations contrary to the procedural economy by opening new lawsuits, the legislator is obliged to comply with the Law No. 6100, which entered into force on 01/10/2011.
It has brought the convenience of filing an “uncertain claim and determination lawsuit” in Article 107. In the article, “In cases where it is not expected or impossible to determine the amount or value of the receivable fully and precisely at the time the lawsuit is filed, the creditor may file a lawsuit for indefinite debt by specifying the legal relationship and a minimum amount or value.” As soon as it is possible to determine the extent of the claim, the plaintiff may increase the claim that he has stated at the beginning of the case, without being subject to the prohibition of extension of the claim.”
Accordingly, the plaintiff will be able to increase the result of the claim without the prohibition of expanding the claim, without the consent of the other party and without the need for correction. It has been accepted that there will be no statute of limitations for this portion to be increased, and that the statute of limitations will cease on the date the lawsuit is filed.
I do not agree with the contrary opinion of the majority of the numbers, as there will be no statute of limitations in correction for the reasons explained. 13/06/2016
