Disclaimer; Article 307 of the Code of Civil Procedure. it is regulated in its articles and is a partial or complete refusal of the plaintiff from the result of the claim. The other party and the court are not required to give consent for the waiver to be valid.
A waiver is a one-party process that can always be applied for until the provision is finalized.It is also possible to make a partial or full waiver at the stage of appeal or decision correction, and if it is made at these stages, the decision to “dismiss the case” is made due to the waiver and the decision to overturn it without a review of the merits by the Supreme Court is returned to the local court.
Claims for material and non-pecuniary damages, which are waivers of the divorce case, can always be waived until the provision is finalized.
The Supreme Court’s Decision on the issue is as follows;
T.C.GENERAL ASSEMBLY OF THE SUPREME COURT OF LAW E. 2017/2-3160 K. 2017/2040 T. 27.12.2017
ABSTRACT: Plaintiff/counter-defendant’s deputy has stated clearly and unconditionally that she has waived these claims with her petition filed before the Supreme Court before the hearing of the request for the appeal of the decision to resist material and moral damages. Although the examination also found that the power of attorney has the authority to waive the case, it is mandatory to take action within the framework of this statement that the plaintiff/counter-defendant’s attorney has waived the compensation claims subject to resistance. In such a case, the decision to resist cannot be examined on appeal by the HGK. In order for this situation to be evaluated and decided by the local court, which arises after the verdict and creates a procedural obstacle to the examination of the appeal, the decision to resist must be overturned.
CASE: At the end of the trial for the case of “mutual divorce and Decriminalization” between the parties; Ankara 11. 20.11.2014 day and 2013/1561 E. Issued by the Family Court on the acceptance of both divorce cases, 2014/1438 K. upon the request of the deputies of the parties to examine the decision on appeal, the Supreme Court of Cassation 2. The Law Department has 12.11.2015 days and 6835/2015 E., 2015/21217 K. although the numbered was partially approved and partially overturned and the file was returned to its place, the court resisted the previous decision at the end of the retrial.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
VERDICT : The case is related to mutual divorce and its consequences.
The court’s decision on the acceptance of mutually filed divorce cases was made by the Supreme Court of Cassation on the appeal of the parties 2. The decision of the Legal Department, the basis and decision number of which are indicated above, and the claimant / counter defendant were impaired by a bet because the material and moral compensation ruled in favor of them is less than in terms of.
At the end of the trial on partial annulment, the court resisted the previous decision.
The decision to resist was appealed by the plaintiff/counter-defendant’s attorney.
While at the appeal stage, the plaintiff/counter-defendant’s deputy expressly and unconditionally informed that he had waived the case in terms of material and non-pecuniary damages with a petition dated 27.11.2017.
The waiver is pursuant to Article 307 of the Civil Procedure Code No. 6100. in its article, it is defined as the plaintiff’s partial or complete abandonment of the result of the claim; 311. in the article, it is explained that the waiver will have the consequences of the final provision.
HMK’s 310th. according to the regulation in the article, the case can be waived at any stage before the finalization of the provision. Since a decision to resist, which has been appealed but has not yet been discussed by the General Assembly of the Supreme Court of Law, has not been finalized within the framework of procedural law, a waiver of the case is possible at this stage.
In the concrete case, the plaintiff/counter-defendant’s deputy has clearly and unconditionally informed that he has waived these claims with his petition filed before the General Assembly of the Supreme Court of Law on the appeal of the decision to resist material and non-pecuniary damages. During the examination, it was also determined that the power of attorney has the authority to waive the case.
In that case, it is mandatory to take action within the framework of this statement by the plaintiff/counter-defendant’s attorney that he waives claims for compensation that are subject to resistance.
In such a case, the decision to resist cannot be examined on appeal by the General Assembly of Law. The decision to resist must be overturned in order for this situation, which arose after the verdict and is a procedural obstacle to the examination of the appeal, to be evaluated and decided by the local court.
CONCLUSION: Provisional Article 3 of the Civil Procedure Code No. 6100 of the court decision on these different grounds in order to evaluate the petition filed by the plaintiff/counter-defendant attorney and make a decision according to the result of the court decision. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. according to article 440 of the same Law, according to the reason for the violation, there is no place for the appeal request to be examined for the time being, if requested, the refund of the appeal advance fee to the depositor. in accordance with the article, the decision was made unanimously on 27.12.2017, with the path to correction open from the date of the notification.
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