There is no legal regulation in our law that makes it mandatory to follow up ilam enforcement with a single and the same file for the items of receivables subject to the same ilam. However, there are no regulations regarding the rights provided for by a provision in the law that can be followed separately.
Article 1 of the Turkish Civil Code. in its article “The law applies to all matters touched upon in its word and essence. If there is no enforceable provision in the law, the judge decides according to customary and customary law, and if there is no such provision, he will make a rule according to what he would have made if he had been a legislator.”the provision is available. Also titled Behaving Honestly is 2. in its article“Everyone is obliged to follow the rules of honesty when exercising his rights and fulfilling his obligations. It does not protect the legal order from blatant abuse of a right.4. entitled “Its provision and the Judge’s Discretion”. in its article “In matters where the law gives discretion or orders to take into account the requirements of the situation or justifiable reasons, the judge decides according to law and equity.”the provision is available.
The abuse of right; a legal right or citing beyond the boundaries of the right, making as to the status of unlawful actions, or a right conferred by law within the limits of, although it is used to mislead from the goal. Although Ilam is a whole, it is clearly an abuse of the right for the creditor to initiate proceedings in such a way as to cause the debtor to incur losses by initiating two separate proceedings based on the same statement without a legal and valid reason.
In this case, since there are no regulations regarding the rights provided for by a provision in the laws that can be followed separately, the judge must fill in the gap in the law within the objective rules of good faith in accordance with the articles of the above law.
The Supreme Court’s Decision on the matter is as follows;
T.C. Court of Cassation 8. Legal Department E 2017/16221 K. 2017/16244 K.T. 6.12.2017
“At the end of the trial between the parties in the case described above … Dec 24.By the decision of the Executive Civil Court, it was decided to dismiss the complaint and, upon application for an appeal by the debtor’s deputy against the Court’s decision … the District Court of Justice 20. The Law Department decided to reject the appeal application, this time the debtor’s deputy examined the file of the Department on the appeal of the decision of the District Court of Justice, it was considered necessary;
decision
The debtor’s deputy requested the cancellation of the pay order, stating that multiple follow-ups were made against his client based on the same ad, and that separate follow-up could not be initiated for each plaintiff because the claimant was a whole.
Court and it was decided that the complaint be rejected, and the provision of appellate counsel against the debtor, upon request by the plaintiffs and the Regional Justice Court case about the friendship between discretionary with the grounds of Appeal was established, each plaintiff resides in a separate provision to a denial of the merits of the Appeal decided that, this time, the debtor’s attorney has appealed.
29 of the Civil Procedure Code No. 6100 entitled The Obligation to Act Honestly and Tell the Truth. in its article, the Parties are obliged to act in accordance with the rule of honesty. The parties are obliged to make their statements about the cases that are the basis of the case in a fair form. 327 Entitled Liability for Judicial Expenses Due to Violation of the Honesty Rule. Article 1. a party that has unnecessarily caused an extension or expense to the case in the paragraph may be sentenced to pay all or part of the trial costs other than the decision and the award fee, even if the case has been decided in its favor. he is called.
article 1 of the Turkish Commercial Code No. 4721 entitled the Application and Sources of the Law. in its article, the Law applies to all issues that it touches upon in its word and essence. If there is no enforceable provision in the law, the judge decides according to customary and customary law, and if there is no such provision, he will make a rule according to what he would have made if he had been a legislator. The judge uses scientific opinions and judicial decisions when making a decision., Entitled Behaving Honestly 2. in its article, everyone is obliged to follow the rules of honesty when exercising their rights and fulfilling their obligations. It does not protect the legal order from blatant abuse of a right. 4, entitled The Discretion of the Judge. in matters where the Law gives discretion in its article or orders to take into account the requirements of the situation or justifiable reasons, the judge decides in accordance with the law and equity. 33, entitled The Application of the Law. in the article, it is said that the judge officially applies Turkish law. Article 36 of the Constitution of 1982 No. 2709 entitled Decisiveness of the Search for Rights.in its article, it is stated that Everyone has the right to a fair trial with a claim and defense as a plaintiff or defendant before the judicial authorities by using legitimate means and means.
Article 61 of the Code of Obligations No. 818. article 77 of the Turkish Code of Obligations No. 6098, which simplifies its article, is entitled Debt Relations Arising from Unjustified Enrichment. anyone who becomes rich from someone else’s assets or labor for no justifiable reason in his article is obliged to return this enrichment. It has been said that this obligation arises especially if the enrichment is based on a reason that is not valid or has not been realized or has expired.
In the concrete case, it is understood that multiple follow-ups have been initiated by the creditor’s deputy based on the same statement.
In this context, there are no regulations regarding the rights provided for by a provision in the laws that can be followed separately. In this case, 1, 2, 4 and 33 of the Turkish Civil Code. article 36 of the Constitution. article 61 of the Code of Obligations and Article 77 of the new Turkish Code of Obligations. article 29 of the Code of Civil Procedure. the dispute must be resolved by considering its article.
2 of the Turkish Civil Code for appeals and complaints related to enforcement law in general. the substance has no ability to be applied. However, considering the other articles of the law mentioned above, objective Decency rules should not be ignored, including but not limited to such events. The abuse of right; a legal right or citing beyond the boundaries of the right, making as to the status of unlawful actions, or a right conferred by law within the limits of, although can be explained as using to mislead from the goal. 2 Of the Turkish Civil Code. according to the article, everyone is obliged to follow the rules of honesty when exercising their rights and fulfilling their obligations. It does not protect the legal order from blatant abuse of a right. That is, a rightholder must follow the objective rules of good faith, act honestly, not harm others when exercising his right and paying the debtor’s debt. Even if the rightholder does not intend to harm someone else, if his action is clearly contrary to the rules of Decency and harms someone else, or if there is an extreme imbalance between the benefit provided to the rightholder and the harm caused to someone else, we can consider this as an abuse of the right. In particular, the Constitution, the Code of Civil Procedure, the Turkish Civil Code and the Turkish Code of Obligations ordered the right holder to act within the objective rules of good faith when exercising his right, otherwise he stated that his behavior could not be protected by the legal order.
In a declaration by the creditor to be malicious pursued separately by exploiting a loophole in the law for the rights in a way that leads to unjust enrichment is requested by the attorney fees extra, where the debtor is the plaintiff of the right to be on the side yukletilm cause extra costs and expenses may not be protected by the rule of law and abuse.The judge is obliged to fill the gap in the law within the objective rules of good faith in accordance with the articles of the law mentioned above. Although Ilam is a whole, it is understood that the creditor, for no legal and valid reason, did not comply with the honesty rule set out in the law by initiating two separate proceedings, which caused the debtor to incur losses.
Since this creditor’s behavior cannot be protected by the legal order in the face of the above-mentioned legal regulations, it was necessary to decide on the overturning of the decision of the first instance court by removing the decision of the District Court of Justice to reject the request for appeal on the basis of the decision of the first instance court.
CONCLUSION: The abolition of the decision of the District Court Court … 24. The decision of the Executive Civil Court dated 21.10.2016 No. 2016/847-834 for the reasons written above was amended by Law No. 5311 IIKU 364/2 for the above reasons. article 371/1-o of HMK No. 6100, which must be applied by sending. in accordance with article 373/1, a sample of the decision was sent to the District Court of first instance, the advance fee was returned to the appellant on request on 06.12.2017, it was unanimously decided that it would be OVERTURNED in accordance with Article 373/1.”
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