THE JUDICIAL COURT OF THE REPUBLIC OF TURKEY 22. Law Office Article No.:2018/6283
Decision No:2018/10735
Decision Date: 04.05.2018
THE CASE THAT THE EMPLOYEE WILL RECEIVE – THE SUBJECT OF THE CASE IS COMPENSATION AND
IT IS THE TECHNIQUE AND EXPERTISE OF CALCULATING RECEIVABLES
– ADVANCE PAYMENT FOR SUBSTITUTION OF EVIDENCE – DOES NOT REQUIRE THAT THE CASE REQUIRES
, THE INACCURACY OF BETTING REJECTION BECAUSE IT CANNOT BE PROVEN –
VIOLATION OF THE PROVISION
SUMMARY: The expert witness fee requested to be kept by the court in a concrete case,
since it is not directly related to the proof of the relevant claim, it has been allocated to the case subject to dispute, since the given period is not duly and conclusively. In addition, in matters where the expert cannot be listened to
it is possible to solve it with the general and legal knowledge required by the judicial profession. The calculation of compensation and receivables subject to litigation is also technical and does not require expertise.
Considering all the file scopes, claims related to the receivables subject to litigation, the plaintiff’s defendant, the plaintiff’s witnesses’ statements and the company’s past work together, according to the understanding that the claims of some of the receivables in question have also been proven, the decision to reject the bet was erroneous and had to be overturned, since the case could not be proven. (1475 PK m. 14) (4857 p. K. m. 17, 41, 46, 47, 57) (6100 P.K.M. 324) (1086 PK m. 427)
Case: The Court of Cassation Decried the decision made as a result of the case between the parties in the interest of law. At the request of the Prosecutor General’s Office, the examining magistrate of the case file is M. After hearing the report edited by Hacıoğlu, the file was examined, discussed and deemed necessary:
Decision: Summary of the Plaintiff’s Request: The surrogate plaintiff is the employer who left his client’s case unattended between Dec. 01.05.1999 and 31.05.2011. A. and the defendant demanded the collection of his receivables from the defendant, stating that he worked as a construction site supervisor and construction machine operator before the takeover company, that the contract was terminated by the defendant employer without a justified reason, that he demanded severance pay, notice compensation, week vacation work, overtime, annual leave and general vacation.
Summary of the Defendant’s Answer: The defendant did not respond to the case. Summary of the Court Decision: The court has decided to dismiss the case.
Appeal: Karan has applied to the Chief Public Prosecutor’s Office of the Supreme Court of Appeals for the overturning of the law in favor of the Public Prosecutor.
Reason:
324 of the Law No. 6100. “advance payment for evidence substitution” is regulated in the article, accordingly
each of the parties will pay the advance determined by the court for the evidence it wants to be substituted,
it is obligatory to deposit in advance for the period given to him. If the parties have jointly requested the substitution of the same evidence, the requested cost is half
they pay half as an advance (f,1). If one of the parties does not fulfill the advance obligation, the other
the party can deposit this advance. Otherwise, he shall be deemed to have given up the substitution of the requested evidence (f.2).
First of all, it should be noted that due to the fact that the evidence was not deposited during the time when the substitution advance was deposited, the case in order to be able to say that it has not been proven, first of all, this evidence must be related to the case in dispute,
it should be directly related to the proof of the claim. In this case, the plaintiff,
since it is accepted that he has given up, he may be responsible for the evidence that he has not paid his expenses and the case may not be proved.
So that’s the evidence
it should not be possible to prove the case without, the party
when it is counted, he must have given up the evidence because he did not deposit the evidence in advance, and this case must remain completely unproven so that a decision can be made in this direction. In this regard, everyone
as it is known, in practice, only the expert report received by the judge due to the intensity of the work of the case
if it is not directly related to the proof, it is stated that the expert fee has not been paid,
it was stated that it would not be correct to dismiss the case on the grounds that it could not be proved.
According to the content of the file; At the hearing dated 14.04.2016, the plaintiff told his attorney “…
when our file was sent to the Bursa Labor Court, the file was found to be in ashes,
including more than the number of parties, the guarantee, the expert’s labor and overtime fee is 300,00 TL at the discretion of the expert’s attorney in exchange for receiving more reports than the number of parties, 150,00 TL of the expert fee paid incompletely by the plaintiff of the file within 1 week from the date of delivery to the teller of our court within the exact period
it will be accepted that the file is based on existing evidence and the file is based on existing evidence in accordance with the notice (notice) that the plaintiff’s attorney will be called to the hearing by the plaintiff, if the specified expert fee is not deposited by the plaintiff to the teller of our court within a certain period of time, the expert examiner will be deemed to have waived his right to rely on evidence, and the plaintiff’s attorney present at the hearing will be evaluated according to his condition, the file will be considered based on existing evidence …”he instructed.
the decision has been made. Although TL 150.00 was deposited by the plaintiff on 04.05.2016,
at the hearing dated 17.05.2016 by the court; the cost of the expert witness
although it is seen that the last session was not deposited in its full term because an interim Decrees were made for the cancellation of subparagraph 2,b and the case could not be proved,
the rejection has been decided. In the concrete case, since the subject of the dispute is not directly related to the proof of the claim related to the case,
as explained above, it is not appropriate and final to request the expert witness fee, which is requested to be kept by the court, by going to the court of appeal, because the period given in relation to the case is not appropriate and final.
In addition, an expert witness cannot rest on issues that can be resolved with the general and legal knowledge required by the profession of a judge. The calculation of compensation and receivables subject to litigation also does not require techniques and expertise. The entire scope of the file, the receivables subject to litigation will be considered together with the plaintiff’s witness statements, the plaintiff’s claims will be heard by the defendant company, and according to the understanding that the claims of some of the receivables subject to litigation can also be proven, the case cannot be proven by the defendant company, it was found that the decision to reject the bet was erroneous and should be overturned.
Conclusion: 3 of the Civil Procedure Code No. 6100 of the Chief Public Prosecutor’s Office of the Supreme Court of Appeals. article 427/6 of the Code of Civil Procedure of the Court of Cassation No. 1086. implementation has been continued in accordance with the article. It was decided to send the case filed with the request to file an appeal in the interest of the law on the grounds that the acceptance of the article provision may be DISTORTED in a way that does not affect the result to the Chief Public Prosecutor’s Office of the Supreme Court and a unanimous decision was made on 04.05.2018. (¤¤)