General Assembly of the SUPREME Court of Law
E. 2018/374
2018/943 K.
Court of First Instance
At the end of the trial held for the case of “vile detection and non-pecuniary compensation” between the parties, Ankara dec. 6. 10.09.2013 day and 2011/189 E, which were issued by the Court of First Instance on the acceptance of the case., 2013/374 K. the decision No. 19 of the Court of Cassation is appealed by the defendant’s deputy. 10.02.2014 days and 2013/19421 E of the Legal Department., 2014/2667 K. by his numbered decision:
“…Attorney for plaintiff; the defendant in the attachment proceedings against his client through his execution Negotiable Instruments for the payment to his client despite the debt 15.04.2011 file on the defendant, the defendant in the execution of the following operations is done by specifying the client’s home on 10.05.2011 by continuing the foreclosure process, your client is owed to the defendant from the date of the payment date 15.04.2011 compensation kotuniyet be declared by the court with determination, and 5.000 TL non-pecuniary damages from the defendant’s decision to demand and the collection has prosecuted.
Total 4.000 TL was paid to the client that the attorney of the defendant, the plaintiff’s debt to file for your client to sign the document in which the phrase is completely charged only upon request, this document is signed by the client under 4.000 TL typing, however, adding to the plaintiff in this document, ”14.000 TL” wrote the amount I was being charged, however, the file of the debt 14.000 TL noting that a dismissal defended.
According to the evidence collected by the court and the expert report; 15.04.2011 in the implementation of the debt as at the date of changing interest rates following file 13.582,13-TL %29 15.083 fixed interest rate is applied,the 78-TL is obtained by the plaintiff and the defendant accepts the document’s signature, dated 15.04.2011 in the absence of findings that there was tampering in the case of the issuance of the document as of the date of the debt was paid off the following file, despite the payment made, the enforcement proceedings were continued and the defendant was malicious due to the foreclosure of the plaintiff’s home, and again, despite the payment of the file debt, the plaintiff’s home was foreclosed on on 10.05.2011 and the household items were stored,
despite the measure being given in accordance with Article 72/3 of the IIK, the collection was continued from the bailiff third party, so the plaintiff’s reputation in the social and business environment was damaged, so it was understood that moral damage was caused by the acceptance of the case; it was decided that the plaintiff was not owed as of 15.04.2011 in the execution follow-up file of the subject matter of the lawsuit, that the 4.400-TL bad faith compensation calculated at the rate of 40% of the receivables subject to the lawsuit should be taken from the defendant and given to the plaintiff, that the 5.000-TL moral compensation should be taken from the defendant and given to the plaintiff, and the verdict was appealed by the defendant’s attorney.
1- According to the articles in the file, the evidence on which the decision is based and the reasons for the necessity, there is no inaccuracy in the assessment of the evidence, the defendant’s attorney’s rejection of other appeals that fell outside the scope of the following paragraph was required.
2- a) Since the reasons given for the fact that the plaintiff suffered moral damage were not considered sufficient for the acceptance of the claim for moral damages, it was not considered correct for the court to rule on moral damages.
b) If the enforcement proceedings forcing the plaintiff to sue the debtor are unfair and malicious, in accordance with Article 72/5 of the IIK, unfair and malicious follow-up compensation shall be awarded upon the claimant’s request for the benefit of the debtor. When this described issue is taken into account, the state of fairness at the date of enforcement proceedings is taken into account to determine compensation. It is not true that this aspect was not observed by the court …”for the reason described in paragraph (a), it was unanimously overturned by a majority of votes for the reason described in paragraph (b) and reversed to the place of file at the end of the retrial, the court was resisted in the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
The case concerns non-pecuniary compensation claims due to vile detection and unfair foreclosure.
The plaintiff’s attorney on file externally initiated enforcement proceedings against his client to be paid by the defendant during 15.04.2011 of debt in relation to the payment and although the signed document was given to the defendant’s bad faith enforcement by continuing to follow the process, the plaintiff had a lien on the home, she had kept abortion and some household items, it would take all the Pharisee who is charged with the defendant, which has been built by that of the foreclosure process in the nature of a tort, the plaintiff’s an embarrassment to the family, which is citing that is injured dignity toward environments,
he requested and sued that the claimant be decided to collect 40% compensation from the defendant and 5,000.00 TL non-pecuniary damages due to unfair foreclosure with the determination that the plaintiff is not in arrears due to enforcement proceedings.
Th defendant’s counsel, enforcement proceedings after his client, the plaintiff 4.000,00 TL paid, then the file is the document that contains the phrase was completely paid off the debt signed by the client wanted to get this situation taken of the client who noticed that day until 4.000,00 TL, I signed the document in his own handwriting typing under it, but by adding it to this document ”14.000,00 TL” says that the amount was charged, however, even this amount of debt, at this stage the file is not more than the amount of debt the payment of the claim, noting that contrary to the nature of life, he requested that the case be dismissed.
The Local Court found that there was no falsification of the document dated 15.04.2011 submitted by the plaintiff and accepted by the defendant’s signature, the debt of the follow-up file was paid as of the date of issuance of the document, despite the payment, the enforcement proceedings continued and the defendant’s house was foreclosed on due to the fact that the defendant caused the case to be opened in bad faith, so the Execution and Bankruptcy Code (IIK) 72/5.
acceptance of the case on the grounds that the plaintiff’s reputation in the social and business environment has been damaged due to foreclosure on the plaintiff’s home and continued collection from the third party who is the bailiff of the execution, determination that the plaintiff is not owed as of 15.04.2011 in the enforcement follow-up file, 40% of the claimant’s 4.400,00 TL compensation It has been decided to collect 5,000.00 TL of non-pecuniary damages from the defendant.
The decision was appealed by the defendant’s attorney and overturned by the Private Department on the grounds contained in the title section above.
Th court considers that tort foreclosure is a tort and requires moral compensation, in a concrete case, the file debt is paid, but the pursuit continues, and the plaintiff’s personal rights are damaged due to the foreclosure of the debtor’s home and the seizure of some household items, so that the reason that forces the plaintiff to file a claim for moral compensation is that the debtor is paid, and the plaintiff’s home is foreclosed on, in this case IIK 72/5. the first provision was resisted on the grounds that the compensation conditions in the article also occurred.
>The decision to resist was appealed by the defendant’s deputy.
The dispute that came before the General assembly of the Law by resisting: 72/5 of the Law on Enforcement and Bankruptcy with the conditions of non-pecuniary compensation due to unfair foreclosure in favor of the plaintiff in a concrete case. it is collected at the points where the compensation conditions in the article have been established.
It is useful to evaluate the dispute issues separately.
I-From the point of view of the defendant’s attorney’s appeals for non-pecuniary compensation;
It should be noted right away that the Turkish Civil Code No. 4721 (TMK) has recognized natural and legal persons as persons. The legal order, which granted people the right to have rights and the ability to get into debt, also provided them with the opportunity to protect their personality. The value is protected to the extent of the physical presence of the person based on personal values (life, body, physical and mental health) and its place in the community and on the effectiveness of the external values (honor, dignity, integrity, dignity, economic, freedom of movement, name, honor, and private life secret area, such as briefly in a format that is integral to be the person the person’s therefore all the values included (22.01.2016 HGK of day and 2014/4-213 E., 2016/70 K.).
In this context, the right to personality is the absolute right of the person who also contains the concept of a person on his/her material and spiritual personal values, which he/she has because he/she is a person, which he/she considers to be worth protecting with his/her right and act license and legal order.
The right to personality is one of the basic rights and freedoms protected in the Constitution. Protecting and respecting the right to personality, which is considered one of the fundamental rights, is a constitutional obligation for both state bodies and individuals. Personality rights have been protected under constitutional protection as well as by the provisions of the Turkish Penal Code.
In the field of private law, the basic regulation on the protection of personal rights is 23 and 24 of the TMK. it is stipulated in the articles. Another regulation on the subject is Article 58 of the Turkish Code of Obligations No. 6098 (TBK). (see Section 49 of the Code of Obligations (BK) No. 818.), and the right of personality of the person who has been attacked has been regulated by the claim for non-pecuniary compensation.
According to the generally accepted opinion, a non-pecuniary compensation lawsuit, which is one of the lawsuits that can be filed for the protection of personal rights, is a lawsuit filed in response to a decrease in the values of the person who has been harmed against his will or in order to eliminate the pain, suffering and suffering of a person whose right to personality has been attacked unlawfully.
As a matter of fact, the law No. 49/1 of the Civil Code No. 818. 58/1 of the Turkish Commercial Code No. 6098, which contains a parallel regulation to Article. article; “A person who has suffered damage to his right to personality may request that some money be paid under the name of moral compensation in exchange for the moral damage he has suffered. it contains the provision “.
As it can be seen, the unfair action lies at the heart of the claim for moral compensation, and the person who has been harmed due to the damage to his right to personality is the subject of Article 58 of the TCC. according to the article, he can seek non-pecuniary compensation for the damage he has suffered.
By the way, the decriminalization process, which is carried out unjustly, is also an unfair act, and therefore the person whose right to personality is damaged can ask for moral compensation.
As for whether there is an unfair foreclosure in a concrete case; the creditor (the defendant) maturity and dated by 30.01.2007 6.000,00 TL 28.03.2007 on negotiable instruments based on bonds with a total worth for the attachment through Feri 6.854,00 TL for the collection of debt the debtor (the plaintiff) is initiated enforcement proceedings against her, where upon notification of the date 25.02.2011 in the order of payment, the borrower dated 01.03.2011 term debt and he appealed to the Pharisee, tracking and any objections and complaints must be made to the court to be on the bill since it is decided objection to denial of, in addition,
the creditor’s deputy requested foreclosure, the first time on 06.05.2011, the second time on 10.05.2011, the borrower’s home address was foreclosed on, the borrower’s statement that he had paid the debt was not accepted by the creditor’s attorney, some household items were stored and put up for sale, a total of four more times on various dates after the sale could not be made, the home address was foreclosed on again, the bailiff’s payment order it is understood that he was removed and the collection from him was continued.
However, according to the document dated 15.04.2011 available in the file, all of the follow-up file debt was paid by the plaintiff to the defendant externally before the foreclosure date. There is also no dispute between the Private Office and the local court that the signature in the dec document belongs to the respondent creditor. In this case, the foreclosure and preservation process that the defendant, who has collected all of his receivables externally, has made in the debtor’s house by continuing the enforcement proceedings by not notifying the enforcement file is an unfair foreclosure. The plaintiff’s reputation was shaken due to the wrongful foreclosure, and his personality rights were attacked.
In that case, the decision to resist the defendant’s liability for moral damage suffered by the plaintiff, which is defective due to unfair foreclosure and retention proceedings, is in place.
However, since there has been no examination of the amount of compensation by the Special Department, the file must be sent to the Special Department for the examination of appeals related to this direction.
II-72/5 of the Law on Enforcement and Bankruptcy of the defendant’s deputy. as for appeals for compensation, which are ruled on in accordance with the article;
As is known, the lawsuit that a person (borrower) who is likely to be subjected to enforcement proceedings due to a debt that does not actually exist or an invalid legal relationship, or who has been subjected to enforcement proceedings, will file to prove that he does not actually owe, is called a negative determination (HGK 22.01.2016 day and 2014/19-674 E., 2016/76 K.; 23.10.2015 days and 2014/19-118 E., 2015/2357 K.).
Article 72 of the IIK No. 2004 establishes the basis of the case of detection of vice. constitute the substance.
72 of the IIK entitled “Cases of false detection and investigation”. the substance;
“ The debtor may file a misdemeanor claim to prove that the debtor is not present before or during the enforcement proceedings.
The court, looking at the case of negative determination filed before the enforcement proceedings, may issue an injunction on the termination of the enforcement proceedings in accordance with the guarantee that will be shown not less than fifteen percent of the amount that you will receive upon request.
It cannot be decided to stop the proceedings by way of an injunction in a case of misdemeanor filed after enforcement proceedings. However, the debtor may request the court not to provide the money in the execution register to the creditor through an injunction in exchange for the guarantee that it will show to cover the damages arising from the delay and not less than fifteen percent of the receivable.
If the case is concluded in favor of the creditor, the injunction is lifted. If the provision on this is finalized, the creditor receives the damages arising from late receipt of the receivable due to the injunction from the collateral shown. The damage suffered by the creditor is adjudicated and decided in the same case. Such damage in any case can not be assigned less than twenty percent.
If the case is decided in favor of the debtor, the follow-up stops immediately. Upon the finalization of the decree, the execution is partially or completely reinstated in accordance with the münderecat and also without the need for a ruling. If it becomes clear that the proceedings forcing the debtor to open a case for detecting a vice are unfair and malicious, at his request, it is decided to collect the damage suffered by the debtor due to the lawsuit from the creditor. The damage to be appreciated cannot be less than twenty percent of the amount that you will receive as a result of unfair follow-up.
If the debtor has not taken an injunction in the event of a misdemeanor case and the debt has also been paid, the case will be continued as an istirdat case.
A person who has not objected to the follow-up or is obliged to fully pay money that he does not owe due to the fact that his objection has been removed may request that the money be withdrawn by applying to the court at the public provisions office within a year from the date of payment.
Cases of negative detection and investigation can be opened in the court of the place where the enforcement agency conducting the follow-up is located, as well as in the court of the defendant’s place of residence. The plaintiff is obliged to prove that the money alone should not be given in the istirdat case.”, which includes the regulation.
In the last sentence of the fifth paragraph of the article, the compensation rate, which was previously forty percent, was determined on 02.07.2012 day and Article 15 of Law No. 6352.it has been changed by article twenty percent.
As can be understood from this regulation, the purpose of a negative determination case is to determine that a legal relationship or right does not really exist.
It can be asserted that the legal relationship based on does not really exist before being subjected to enforcement proceedings, or it can also be asserted after enforcement proceedings. In order for the debtor to be able to file a negative determination lawsuit before or after the enforcement proceedings, it is necessary to have a legal interest in determining that the debtor is not.
A benefit that is worth protecting may be found in determining that the borrower is not the borrower without waiting for the creditor to take action. If such a benefit is found, the debtor may file a lawsuit to determine that he is not the debtor before the enforcement proceedings.
In addition, since enforcement proceedings are not sufficient to determine the material relationship between the parties, it is possible that the debtor will ask the court to determine that he is not the debtor after the creditor has started dec, or even after the follow-up has been completed.
In order to resolve the dispute, it is worth mentioning the consequences of the adoption of a vile detection case.
As a result of the negative determination case, if the court finds that the case is justified, it decides to accept the case, that is, to determine that the plaintiff is not in arrears. With the finalization of this decision, it is determined from the point of view of material law that the receivable claimed by the creditor or made the subject of follow-up does not exist, and the dispute is definitively resolved. In case of conclusion (acceptance ) of the case in favor of the debtor, the subject of the case is the fate of the enforcement proceedings and Article 72/5 of the IIK. the issue of compensation, which is regulated in the article and must be ruled in favor of the debtor, is raised.
After the decision is made (without the need to finalize it), the enforcement proceedings stop immediately, and when they are finalized, the enforcement proceedings are canceled and the plaintiff is relieved of paying the debt.
72/5 of IIK. in the article, it is stipulated that if the enforcement proceedings forcing the debtor to open a vices detection case were conducted unfairly and in bad faith, it will be decided to collect the damages suffered by the debtor due to the case from the creditor, not less than twenty percent of the receivable subject to follow-up upon request.
However, there are some conditions under which compensation can be decided in favor of the debtor who won the case for the detection of vice. First of all, since the creditor must have forced the debtor to file a vices detection case with the enforcement proceedings it has made, there must be an enforcement proceedings made against the debtor. In this regard, if there is no enforcement proceedings against the debtor, there will be no compensation. In addition, in addition to the fact that the debtor makes a request about this during the vices detection case, the creditor must be unfair and malicious in the enforcement proceedings that force the debtor to file a lawsuit.
It is important to note that here it is not enough that the creditor is not only unfair in the enforcement proceedings, but also that the proceedings were conducted in bad faith in accordance with the explicit regulation in the article of the law.
The unfairness of the proceedings is in question if the creditor undertakes enforcement proceedings even though he has no receivables at all or in the amount requested. The bad faith contained in the article text occurs only if the creditor knows that it is unfair and attempts to pursue it in order to cause damage to the debtor.
All these comments when taken in context of the concrete event, the creditor (the defendant) on negotiable instruments based on Bonds by maturity 30.01.2007 dated 28.03.2007 through the attachment for the debtor (the plaintiff) enforcement proceedings initiated against the address on the order of payment to the debtor because after a long time of research 25.02.2011 dated 15.04.2011 document has been communicated by the borrower and the debt has been paid. As it will be seen, the defendant is actually a creditor, and the receivable was paid after the enforcement proceedings. Therefore, it cannot be said that the creditor is unfair and malicious in the enforcement proceedings initiated because of a debt that has not been paid on its due date.
However, due to the fact that the creditor continues the enforcement proceedings after the payment of the debt and the fact that the case of “unfair and malicious intent” was opened after the payment of the debt, the issue of whether compensation can be decided if it occurs after the enforcement proceedings was discussed and IIK 72/5. article 72/5 of the IIK in favor of the plaintiff in a concrete case, where [u] “follow-up” is called here[u] and the state of fairness at the date of the follow-up is based on [/u], as such. it has been accepted by the majority of the Board that the compensation conditions in the article have not been formed.
During the negotiations at the General Assembly of the Law, 72/5 of the IIK. negative clearance to open the case of the article that forces the debtor to “pursuit” unfair and abusive to be looking for, execution monitoring process to occur, the phenomenon of unfair and therefore not only determined by the moment of the start of enforcement proceedings malevolence it’s not true,
but negative clearance and enforcement proceedings before the opening of the case after the creditor, unfair and abusive fall into the situation that you can, in fact, all written documents in exchange for payment of the debt in a concrete case against the creditor as unfair by refusing to report the status of the execution file to the chase continues, it is stated that the borrower has made a foreclosure transaction in his house, as well as trying to collect from the bailiff,
and the situation that forces the borrower to open a case for detecting a bad deed at hand is this unfair attitude, IIK 72/5. although the opinion has been put forward that the decision of the local court should be upheld in terms of the compensation ruled in favor of the debtor in accordance with the article, this opinion has not been accepted for the reasons described above.
As such, Article 2 of the decision to abolish the Special Chamber adopted by the General Assembly of the Law. it is not in accordance with the procedure and the law to resist the previous decision, while it is necessary to comply with paragraph (b) of Article.
Then the decision to resist in this direction must be overturned.
CONCLUSION: 1- For the reasons described in paragraph (I) above, it is appropriate to resist and to examine the defendant’s attorney’s appeals against the amount of non-pecuniary damages in the file 19. IT is unanimous that it should be SENT TO THE LEGAL DEPARTMENT,
2-For the reasons described in paragraph (II) above, the decision of the defendant’s attorney to resist the acceptance of the appeal and the decision to overturn the decision of the Special Chamber 2. provisional Article 3 of the Civil Procedure Code No. 6100 for the reasons indicated in paragraph (b) of Article. 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, if requested, the advance fee for the appeal will be returned to the depositor. in accordance with the article, the decision was made by majority vote at the second meeting held on 25.04.2018, with the path to correction of the decision being open within fifteen days from the notification of the decision.
VOTE AGAINST
The case is related to the determination that it is not owed due to follow-up.
At the end of the trial conducted by the court; compensation was decided by betting that the defendant creditor, who continued the enforcement proceedings against him despite the fact that the debt was fully paid after the acceptance of the case and the follow-up, had bad faith.
A person who has a document stating that he will receive it can track it by obtaining an order from the court, as well as having the opportunity to obtain his receipt by applying directly to the relevant enforcement agency.
However, in the event that the receivable is primarily the subject of enforcement proceedings, the consecutive cancellation of the appeal or
if it is reflected to the court in the form of a negative determination case; additional compensation is provided for the debtor who objected to the follow-up, even if he knew that he was owed, and the creditor who started the follow-up unnecessarily, even if he knew that he was not a creditor, not less than 20%.
Compensation in a concrete dispute relates to compensation for evil, which is regulated in Article 72/5 of the IIK. The relevant article contains the provision “… if it becomes clear that the proceedings forcing the debtor to open a case of vices are unfair and malicious, at his request, it is also decided to collect the damage suffered by the debtor due to the lawsuit from the creditor”.
It is possible to summarize the concept of “bad faith” contained in the article text as follows: Despite a clear document and information that will make it unfair to pursue enforcement proceedings, the creditor takes a position to the contrary and starts a follow-up or continues to do so.
However, here it is necessary to examine which stage of the “follow-up” corresponds to the phenomenon of bad faith that will be explained to the creditor. In other words, unfair and malevolence “track order” is a factor to be determined as of the date or “negative clearance” in the ongoing process of opening up to the date of the case will mean total attitude and behavior, to clarify issues are required.
Especially when the legislator that penned the text, “…FORCING negative clearance to open the case” according to the concept of;in pursuit of bad faith at the time of the request only if the following phenomenon in determining the will to assess general attitudes and behavior but also in the process by looking at the left to open the case to determine if you have negative clearance to the debtor wrongfully, equity and procedural economy has been around for an arrangement that is more appropriate to the purpose and spirit of.
In our case, according to the content of the document contained in the file and not proven otherwise, it appears that the defendant has collected all of the receivables subject to the creditor’s follow-up file. This in case, the fact that the defendant creditor continued to perform consecutive enforcement actions and made the debtor foreclose on household items and attempt to make additional collections from the guarantors made the decency indisputable.
In accordance with all these assessments, the court’s ruling against the defendant-creditor is in place of compensation for bad faith, and I do not agree with the majority opinion, which is otherwise manifested in the opinion that the decision should also be upheld in this direction.