EN SUPREME COURT
Law Office
Originally: 2016/3774
The Verdict: 2016/7793
Decision Date: 13.06.2016
APPLICATION FOR CLAIMS FOR DAMAGES – THE START DATE OF THE SCHEDULE MUST BE DETERMINED FROM THE DATE ON WHICH THE APPLICANT PERFORMS – WHEN THE STATUTE OF LIMITATIONS EXPIRES – THE REQUESTED DEPARTMENT MANAGEMENT REVIEW
SUMMARY: Plaintiff’s damages…./…./…. and this date should be taken as the starting date of the statute of limitations, in this case the petition for correction ………. it is given in the history. As of this date, the 60th of BC. and TBK’s 72. the 1- and 2-year statute of limitations regulated in the articles have passed. Since a statute of limitations lawsuit was filed by the defendant against the correction within its time limit, it was rejected due to the statute of limitations in terms of the department where the correction was requested, but since it was understood that the acceptance was not correct and the decision was upheld when it should have been overturned, it had to be decided to accept the defendant’s attorney’s request for correction, to cancel the approval decision of our Department and to overturn the decision.
(6100 SQ Md. 107, 109) (6098 SK Md. 72) (818 SK Md. 60)
Case and Decision: The day and number of the above-mentioned decision made by the local court due to the compensation case between the parties; the defendant’s attorney requested that the decision be corrected within the time limit of the Dec..with the decision numbered 440-442, it has been decided to approve our department. The report issued by the investigating judge and the documents in the file were examined and discussed.
1- In the face of the compelling reasons shown in the appeal petition, which are outside the scope of the following paragraph and are amended by Article 440 of the Code of Civil Procedure. the defendant’s request for decision correction, which does not comply with any of the reasons listed in the article, must be rejected.
2- As for the defendant’s request for correction of the other decision;
The lawsuit is related to the request for collection of material damage incurred due to wrongful foreclosure. The plaintiff party stated that the defendant debtor had placed a lien on the defendant’s workplace due to the debt of the defendant’s son, who is the defendant debtor, demanded a fee, the creditor was given time to file a lawsuit in the enforcement court by the enforcement court, the lien was lifted due to the defendant’s failure to file a lawsuit, and requested that the defendant collect the costs he incurred due to his inability to use and retrieve his belongings from the trustee.
Correction is one of the exceptions to the prohibition of extending and modifying claims and defenses, and is defined as the partial or complete correction of a procedural transaction by one of the parties. With the amendment, the parties may change the cause of action, the subject matter of the case or the outcome of the request. Provided that there is a lawsuit filed in accordance with the procedure, it is possible to partially or completely correct the case.
Changing the cause of the lawsuit or the subject of the lawsuit is a complete correction. (Baki Kuru C.4 pp. 3990). In partial correction, there is a correction of a procedural action made after the case. As accepted in the Doctrine and the case law of the Court of Cassation, all procedural procedures performed from partial correction to the date of correction in case of an increase in the time limit (the cost of the case) and in partial correction do not replace full correction. It refers to the provision looking forward from the date of partial correction.
The statute of limitations is not a phenomenon that eliminates debt, but a means of defense that eliminates the desirability of a born and existing right. Therefore, the statute of limitations does not eliminate the existence of the receivable, but its desirability. BK. m.in 133, the reasons for the termination of the statute of limitations have been counted, and one of them is to file a lawsuit. Since the case has been amended from the beginning (since the petition), the statute of limitations for the amended part also begins to apply on the date of opening of the case.
In a partial case, the statute of limitations is terminated only for the part that is the subject of the lawsuit. The statute of limitations continues to run for the part that has not yet been opened (stored) and then increased through reclamation.
As a matter of fact, 107 of the CCP No. 6100, which entered into force on 01/10/2011. it has been accepted that the extension of the claimant’s receivables is prohibited in the indefinite period receivables cases and determination cases regulated in the article and that the result of the receivables can be increased without seeking the consent of the other party and without the need for correction. With the lawsuit, it is stated that the statute of limitations will expire on the date of the first lawsuit. 109 Of the same Law. in the partial case in the article, there has been no announcement that the statute of limitations will be cut off.
Who is involved in the preparation of Law No. 6100.. according to the provisions of the Code of Civil Procedure published by, 321 of the Code of Civil Procedure Book. on his page, “In cases where it is possible to file a lawsuit for indefinite receivables, it will not be more convenient for the plaintiff to file a partial lawsuit for three reasons. First, the statute of limitations will not be cut off for the remainder of the claimant’s claim that has filed a partial lawsuit. On the other hand, the statute of limitations for indefinite receivables
it will be accepted that it has been deducted for all receivables on the date of the case. Secondly, if the plaintiff who has filed a partial lawsuit wants to claim the remaining portion of what he will receive during the trial, he will be able to do so only with the explicit consent of the other party …” It is understood that the steady practice that the statute of limitations will be cut off only for the part subject to litigation continues in the case of a lawsuit.
When the concrete incident is evaluated in the light of these explanations, it is understood that the tort occurred on 18/05/2010 due to the defendant creditor’s failure to file a claim for compensation, and the seized goods were delivered to the plaintiff on 01/10 2010.
In this case, the plaintiff’s damage was realized as of 01/10/2010, and this date should be taken as the start date of the statute of limitations, in this case, the 1 and 2-year periods regulated in Articles BK 60 and TCO 72 as of 16/04/2013, when the correctional petition was filed, should be taken into account.
The statute of limitations has expired. Since a statute of limitations lawsuit was filed by the defendant against the correction within its time limit, it is necessary to reject it due to the statute of limitations in terms of the department requested by the correction, but since it is understood that the acceptance is not correct and it is understood that the decision was approved when it should have been overturned, it should be decided to accept the defendant’s attorney’s request for correction, to cancel the approval decision of our department and to overturn the decision.
Conclusion: 440-442 of the Code of Civil Procedure. substances. Upon acceptance of the defendant’s attorney’s request to correct the decision for the reasons specified in paragraph (2) above in accordance with our articles of association, our Chamber’s approval decision dated 12/11/2015 and numbered 2014/14697 – 2015/12884 will be revoked; on 13.06.2016, it was unanimously decided to overturn the decision for the reasons mentioned above, reject the defendant’s other decision correction requests for the reasons specified in paragraph (1), and refund the fee and decision correction fee received from the defendant requesting the decision correction together with our previous consent decision upon request.
OBJECTIVE VOTING
according to the HUMK No. 1086, a correction is a full or partial correction of a procedural action performed by one of the parties (m. 83).
Since the principle of combining litigation and defense is valid in our Civil Procedure Law and cannot be changed without the consent of the other party, it is a way improvement institution that a party who wants to change or extend a lawsuit or defense can apply.
The subject of the correction is a procedural action, and the party who does this may change the cause of action, the claim and the outcome of the claim. However, the period cannot be increased and the parties cannot be changed (m. 87)
However, by the decision of the Constitutional Court dated 20/07/1999, the 87th of the HUMK. upon the cancellation of his article, the plaintiff was given a way to increase the case through reclamation.
Correction can be made until the end of the trial (m. 84) Correction; It is made in writing by one party’s unilateral and explicit statement of will against the court or orally if the other party is ready. The correction does not depend on the acceptance of the court or the other party.
In a lawsuit filed by a plaintiff who does not fully know the amount or value or value of what he will receive, the plaintiff, if the cost of the lawsuit exceeds the value specified in the petition during the trial, according to the result of the trial, this part of the HUMK is 84. in accordance with the article, he may file a lawsuit by amending. This part does not constitute an additional case. Oct.
The statute of limitations is a defense of a legal nature and does not eliminate the debt itself, but eliminates the right to sue over the debt.
The case is subject to the statute of limitations on the date it was first filed, and there will no longer be a statute of limitations for the part requested by the amendment. These issues are for cases where it is possible and objectively impossible to determine the exact amount and value that the creditor will sue for, but not for cases where the amount of the case is known or can be determined.
In the petition, the request was put forward in order to reserve the rights related to the surplus; a correction petition was filed after the expert report and increased as a result of the request.
The claim put forward by the plaintiff in the correction petition is not in the nature of a new lawsuit, but in the nature of increasing the outcome of the claim in the lawsuit petition. Therefore, the objection to the statute of limitations, which can only be brought forward against the petition, cannot be brought forward against the correctional petition. Correction, 176 of the Code of Civil Procedure No. 6100, which entered into force on 01/10/2011. and it is arranged in the following articles. Article 177/1 of the aforementioned Law. It is clearly arranged in the article that the correction can be made until the end of the investigation. In this case, the statute of limitations against correction cannot be requested. Because the correction is not a new case, it is only a change made in the petition for the case.
In practice, this excess of the plaintiff over time, in the prohibition of extending the case, is contrary to the freedom to seek rights and in order to eliminate situations contrary to procedural economics by opening new cases, the legislator has been forced to comply with the Law No. 6100, which entered into force on Dec. 01/10/2011.
107. in the article, the ease of opening an “indefinite receivable and determination case” has been introduced. The article states“ “In cases where it is not expected or impossible to determine the exact amount or value of the receivable at the time of filing the lawsuit, the creditor may file an indefinite receivable lawsuit by specifying the legal relationship and a minimum amount or value.” As soon as the scope of the receivable can be determined, the plaintiff may increase the receivable that he put forward at the beginning of the case, without being subject to the ban on expanding the receivable.”
Accordingly, the plaintiff will be able to increase the result of the request without the prohibition of extending the request, without the consent of the other party and without the need for correction. It has been accepted that there will be no statute of limitations for increasing this part and that the statute of limitations will stop on the date the case is opened.
Since there will be no statute of limitations on correction for the reasons explained, I do not agree with the majority’s opinion in the opposite direction. 13/06/2016