EN SUPREME COURT
law office
Mainstay: 2016/4562
Verdict: 2016/7793
Decision Date: 03.05.2016
CANCELLATION OF THE CORPORATE TRANSACTION – DETERMINATION OF THE RIGHT TO BORROW FOR WORK PERIODS PERFORMED ABROAD WITHOUT THE CONDITION OF BEING A TURKISH CITIZEN – OVERFLOW OF THE PROVISION
SUMMARY: The plaintiff has requested the determination that he has the right to borrow working hours abroad without being required to be a Turkish citizen and the cancellation of his transaction in the opposite direction by the Institution. In the concrete case, the plaintiff’s insurance in Turkey is between the dates T. Dec.C. While working as a subject of the Pension Fund, he was allowed to renounce his Turkish citizenship in order to acquire German citizenship by a dated decision of the Council of Ministers.
It has been found that it really works. It is understood that the dispute resolution is the duty of the administrative judiciary as a result of the plaintiff, who is a member of the Pension Fund due to his work in Turkey before the law entered into force, requesting to loan his work abroad as required by law, and the “judicial” court had to decide to dismiss the case because the way the case was filed was not permissible, the decision on the merits of the case was contrary to procedure and law, and the reason for cancellation, and the defendant Institution’s appeals against these aspects had to be accepted and the verdict overturned.
(6100 SQ Md. 114) (5510 SK Md. 101, Kr. Md. 4) (2577 SK Md. 2)
Case: The plaintiff requested the determination that the periods he worked abroad could be borrowed without the requirement of becoming a Turkish citizen, and the cancellation of the transaction in the opposite direction by the Institution.
The court decided to accept the request, as stated in the decision.
Upon the appeal of the decision by the defendant’s attorney, it was understood that the appeal request was made on time, and after reading the report and the document in the file issued by the Investigating Judge, the necessity of the study was evaluated and the following decision was made.
The case relates to the determination that the plaintiff may be indebted under the provisions of the Pension Fund in accordance with the provisions of Law No. 3201, taking into account the military service he performed while a Turkish citizen, determining that his foreign services are subject to the Pension Fund, and otherwise requesting the cancellation of the institution transaction.
court decided to accept the case in writing.
The dispute is collected at the point of determining the competent judicial route.
According to Article 114/1-b of the Code of Civil Procedure No. 6100, “judicial application is permissible” is the condition of the case, and the court spontaneously investigates whether the conditions of the case exist at each stage of the case. The parties may always assert that there is no requirement for litigation. If the court finds that there is no legal requirement, it dismisses the case from the procedural point of view.
The Social Insurance and General Health Insurance Law No. 5510 entered into force on 01.10.2008, and in cases where there is no provision to the contrary in this Law, disputes arising in connection with the implementation of the provisions of this Law are handled by the labor courts in accordance with Article 101 of the Law.
according to paragraph 4 of provisional article 4 of Law No. 5510 entitled “Transitional Provisions Related to Law No. 5434”, “Unless there is a provision to the contrary in this Law; those who fall within the scope of the first paragraph (c) of the 4th article of this Law on the date of entry into force of this Law, those who worked in accordance with the provisions of the 5434th Law before the date of entry into force of this Law, as well as those who fall within the scope of the first paragraph (c) of the 4th article of this Law, those who have started working again and their widows and orphans, including the provisions repealed by this Law, shall be processed in accordance with the provisions of the 5434th Law.”
101 of the Law No. 5510. in the article “…Disputes related to the implementation of the provisions of this Law are heard in the Labor Courts.” the judgment is contained. Constitutional Court, date of 22.12.2011 and E:2010/65 , K:2011/169 with its numbered decision, it decided to reject the cancellation request, in the justification of the decision, it was stated that the actions and actions to be performed by the Social Security Institution that were working as an associate in the status of an officer before the Law No. 5754 entered into force will retain the nature of administrative operations, while the administrative judiciary will continue to function in terms of other public servants and monthly fields, widows and orphans who are retired in accordance with Law No. 5434, as well as civil servants and other public servants who will be entitled to retirement in the future.
According to Article 153 / last of the Constitution, the decisions of the Constitutional Court are published in the Official Gazette and bind the legislative, executive and judicial organs, administrative authorities, natural and legal persons. The opinion that prevails in doctrine with the decisions of the Constitutional Court is that the reasons for the decisions of the Constitutional Court are also binding.
On the other hand, the decision of the Dispute Court dated 4.9.2012
principles and Decisions regarding those who will be entitled, numbered 2012/64-83, the decision and resolution of the case filed by the plaintiff, a retired civil servant, who is within the scope of cancellation cases filed by those whose interests have been violated due to illegality due to one of the aspects of authority, form, reason, one of the aspects of the subject and purpose, will be considered in administrative jurisdiction, since the actions and actions established by the Social Security Institution will continue to retain the character of “administrative action” and “administrative action” in the decision numbered.
On the other hand, according to Article 4 /c of Law No. 5510, it has been concluded that the insured persons subject to the provisions of this Law will be considered insured and the principles and principles contained in Law No. 5510 will be applied, not Law No. 5434, so that disputes will be resolved in judicial authorities.
In the concrete case; On the date of 23.10.2000, when the plaintiff received the citizenship renunciation certificate, the plaintiff’s insurance in Turkey was Decoupled between 31.03.1987 – 31.03.1988.It is understood that he is affiliated to the C Pension Fund, has renounced his citizenship and has been working in Germany since 01.04.1996.
it is understood that the plaintiff, who was a member of the Pension Fund due to his work in Turkey before 01.10.2008, when law No. 5510 entered into force, was caused by a request to borrow his work from abroad in accordance with law No. 3201, taking into account that the resolution of the dispute falls within the mandate of the administrative judiciary. According to Article / 1-b, while a decision should be made to dismiss the case out of procedure due to the fact that the “legal way is closed”, which is the condition of the case, making a written decision based on the merits of the case is contrary to procedure and the law and is the reason for overturning it.
The defendant Institution’s appeals against these aspects had to be accepted and the judgment had to be overturned.
Conclusion: It was unanimously decided on 03.05.2016 that the provision is INVALID for the reasons explained above.