General Assembly of the Court of Cassation
2018/502 E.
2018/1049 K.
Court of First Instance: Court of First Instance
At the end of the trial of the “Prevention of Confiscation, Severance and Decriminalization” case between the parties; Ankara West 3. 18.09.2012 day and 201/246 E. numbered, issued by the Court of First Instance regarding the partial acceptance of the case, 2012/239 K. numbered decision, upon the request of the plaintiff and defendant’s attorneys to review the decision, Court of Cassation 1. Prior approval by the Legal Department, acceptance of the request upon the request of the defendant’s attorney to correct the decision and cancellation of the approval decision, and 09.12.2013 day and 2013/13861 E., 2013/17433 K. with a numbered decision:
“…The case concerns the prevention of large-scale confiscation, destruction of immovable property and compensation claims.
The decision of 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 content 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 and the decision of dismissal made by the said court was finalized on 26.05.2011 without recourse to the appeal method.
As it is known, the Code of Civil Procedure (CCP) is 6100. article 20. in the paragraph; the court that makes a decision of dereliction of duty or lack of authority, in this decision, only decides to send the case file to an official or authorized court. He cannot send the case file spontaneously (if any) to the authorized or authorized court. In order for the case file to be sent to an authorized or authorized court and for the case to be continued in an authorized or authorized court, one of the parties must apply to the court that made the decision of non-duty or incompetence and have it notified within two weeks from the date of finalization of the decision of non-duty or incompetence. The two-week period here is a violation of rights
and is personally monitored by the court.
Although the decision of incompetence in the concrete case was finalized on 26.05.2011, Ankara 3. It is seen that the file was sent to the authorized Sincan Civil Court of First Instance with the letter of the Civil Court of First Instance dated 27.05.2011.
As a matter of fact, HMK’s 20/1. while it is decided that the case should be considered unsolved by taking into account the article, it is not correct to make a judgment on the merits of the work …”
it was decided to return the file to its place by overturning the justification, and as a result of the retrial, the previous decision was resisted by the court.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision to resist was appealed in the examination conducted by the General Assembly of Law, and the document in the file was read, the following issue was discussed:
The case is related to the prevention of confiscation of immovable property, demolition and criminal claims.
Attorney requested that a part of the immovable property belonging to his client be used by the defendant as a service area without permission, that unfair savings and destruction be prevented, and that the damage suffered by the plaintiff be determined and a decision be made to collect it.
The defendant’s attorney requested authority by stating that the real estate is located in Etimesgut, therefore the Xinjiang Courts are competent.
Ankara, where the case was opened 3. The Civil Court of First Instance issued a decision of dismissal on the grounds that the competent court is the Xinjiang Courts, where the real estate is located, and the file was finalized by the competent court Sincan 3 after the decision was closed on appeal. It was sent to the Court of First Instance. As a result of the trial held at the Court of First Instance, it was decided to partially accept the case.
The decision was first approved by the Special Chamber at the request of the attorneys of the parties applying for an appeal, but this time the approval decision was lifted after the defendant’s attorney went down the path of correcting the decision and was overturned on the grounds set out in the title deed section above.
The legal provisions to be applied by the local court are the provisions of Article 193 of the Code of Civil Procedure No. 1086, which was in force on the date of finalization of the unauthorized use decision. the substance is the provisions.
According to the Article, applications to be made to the authorized (or unauthorized) court for the decision to send the file to the authorized court are usually made with a petition, but if the way of filing an application is not provided for by petition, paying expenses deemed necessary and sufficient within the ten-day period of notification to be made by an authorized (or unauthorized) court, if this has not been done within the ten-day notification period; in addition, if it has not been opened, there is no objection to delay, in a concrete case, the plaintiff has applied to the court to deposit the notification expense within the legal ten-day period and the decision to resist has been made on the grounds that he has fulfilled the legal regulation requirement.
The decision to resist was appealed by the plaintiff and defendant attorneys.
The dispute encountered through resistance in the General Assembly of Law is whether the application to send the case file to the competent court after the unauthorized application decision is finalized should be made with a petition, whether the notification fee deposited is considered sufficient, whether the request to send the file to the competent court was made by the plaintiff’s attorney within the time limit, whether the conditions necessary for the case to be considered unopened are formed.
It should be noted immediately that the case was filed on 12.01.2011, during the period when the Civil Procedure Code No. 1086 (HUMK) was in force, and the Civil Procedure Law No. 6100 (HMK) entered into force while the case was ongoing.
Since the provisions of both laws contain different regulations on the procedures to be performed in order for the trial to be continued in the competent or competent court upon the decision of lack of a license or restriction, it is necessary to determine which provisions of the law should be applied to the incident first in order to resolve the dispute.
As it is known, the basic principle applicable in the field of procedural law is the immediate entry into force of the provisions of the law related to the trial. The reason for the adoption of this principle is that the procedural provisions are closely related to public order.
Another issue that should be taken into account together with the immediate applicability rule in the implementation of the procedural rules in terms of time is whether the procedural process related to the entry into force of the new procedural rule has been completed. Because if a new rule comes into force after the procedural process is completed, the completed process retains its validity. On the other hand, if the procedural process has not yet been completed, the new law will enter into force immediately as a rule.
As a matter of fact, the title “implementation in terms of time” of the CCP numbered 6100, which entered into force on 01.10.2011, is 448. in the article;
“The provisions of this Law are applied immediately, provided that they do not affect the completed transactions.” the judgment is contained.
For this reason, in order to determine the provisions to be applied to a concrete dispute, it should also be stated whether the transaction subject to the dispute is a “completed procedural transaction”.
It should be noted that the case consists of various procedural procedures and stages that start with the submission of the petition to the court and continue until they end with the decision (or judgment). Each procedural process during the trial should be considered and evaluated separately. It is not possible to evaluate a case as a whole and say whether the new law will be effective in this regard. If a procedural process and section made during the trial have been completed, the new law will no longer have any effect on that procedural process and therefore will not be applied.
If a procedural action is initiated and completed during the trial, and a new procedural rule comes into force later, this procedure remains valid. In other words, completed procedural transactions are not affected by the newly issued procedural provision (or law).
Taking into account the concrete incident within the scope of all these explanations, the case is Ankara 3. HUMK is case number 1086. It was filed in the Court of First Instance on 07.04.2011 and 2011/17 E., 2011/127 K. with the numbered decision, it was decided that the court was not authorized, the decision was finalized and the file was sent to the authorized court upon request. The decision in question has been notified to the deputies of the party and has been finalized on 26.05.2011, with the appeal route closed. Therefore, the period for the dispute resolution procedure to be performed has expired with HMK 1086, which was in force on that date, before HMK 6100 entered into force. In this respect, there is no doubt that the provisions of the law that should be applied in the settlement of the dispute are the relevant provisions of the CMB.
27 Of the relevant Law No. 1086. in the article; “If the court decides to reject the wishful thinking of the case on the grounds that it has no duty or duty, it will send the wishful thinking and the case file to the court to which it is affiliated and no fees will be charged again.” the judgment is contained.
HUMPH. m. 193;
“The plaintiff is obliged to organize and submit a new petition in place of the petition decided to be canceled.
In case of a decision of lack of license or restriction, the plaintiff must inform the authorized or authorized court to the other party about the situation.
In both cases, it is mandatory to issue a letter of repetition or recall within ten days from the finalization of the decision.
Otherwise, the case will not be considered filed. The separate provisions specified in the law are reserved.” he conducts the trial himself by giving his verdict.
According to the provision of the above-mentioned article, the court that makes an unauthorized decision is content with deciding “to send the case file to the authorized court upon request” in its unauthorized decision. He cannot send the case file to the competent court by himself. In order for the case file to be sent to the competent court and for the case to continue to be heard in the competent court, the plaintiff must apply to the competent (or unauthorized decision-making) court with a petition within ten days from the date of the final decision of the unauthorized person, or notify the defendant by issuing a summons paper. Otherwise, the case will not be considered filed.
The application period to the competent or competent court is ten days, and this period is unfair. Therefore, it must be observed by the court itself.