TC
SUPREME COURT 12th Civil Chamber Case No: 2018/3154
Decision No: 2018/7106
Date of Decision: 02.07.2018
SUPREME COURT DECISION
: Enforcement Court
Upon the request of the creditor who filed the appeal, within the time limit of the court decision, the decision dated and numbered above was sent to the chamber from the place of the case, and after hearing the report prepared by the examining judge and reading and examining all the documents in the file, the necessity of the work was discussed and evaluated:
The debtor’s representative applied to the enforcement court; in addition to other objections, he stated that a prosecution had been initiated against his client based on a judgment, but the prosecution decision had not yet become final.
The debtor’s representative applied to the enforcement court; In addition to other objections, he stated that proceedings had been initiated against his client based on the judgment,
but that the decision to prosecute had not yet become final, because according to the law of the person,
prosecution cannot be carried out before it becomes final,
and that the provisions relating to the law of the deceased, the court, the family, and the person cannot be applied before they become final.
According to the decision of the Intellectual and Industrial Property Rights Court, the plaintiff legal entity
cannot prosecute until it is finalized that it relates to compensation for unauthorized use, therefore the request is accepted and Article 3 of the Civil Procedure Law No. 6100 must be applied through appeal, this article must be referred to HUMK No. 443/1, therefore the appeal does not suspend the implementation of the decision
. Therefore, as a rule, the fact that your decision is not yet final does not prevent its enforcement. Exceptions to this rule are also regulated by law. Provisions of family and personal law (HUMK.443/4) cannot be enforced before they become final.
The provisions referred to in this article are found in the “Personal Law” and “Family Law” books of the Civil Code; These books do not contain provisions on all matters, but they do contain legal provisions directly related to the individual’s personal or family structure, provisions creating changes, and the nature of these provisions (e.g., name, surname, age correction, custody decision, paternity suit, birth correction, divorce, and provisions related to the nature of divorce…). It should be reiterated that instructions regarding the handover of the child and the establishment of a personal relationship with the child cannot be enforced until they become final (Baki Kuru – Handbook of Enforcement and Bankruptcy Law, pp. 923-924).
In Istanbul, the basis for enforcement proceedings in a specific case was established by the Intellectual and Industrial Property Rights Court’s
dated 03.02.2015, No. 2012/110 e., 2015/16 K.,
in a case filed pursuant to Article 68 of Law No. 5846 due to the unauthorized use of images of a work,
it was stated that the copyright compensation requested in accordance with the relevant article would be paid to him.
Although judgment law relates to personal law, in legal situations concerning the parties themselves,
it is not necessary to issue a final decision that will create a change in the outcome, but only to affect their existence and thus be enforceable.
In this case, the court should decide to dismiss the complaint based on the outcome of the examination, along with the other grounds stated in the complaint, and it would be wrong to decide to cancel the enforcement with a written justification.
CONCLUSION:
Acceptance of the creditor’s objections and the court’s decision for the reasons stated above (
pursuant to Article 366 of the Enforcement and Bankruptcy Law and Article 428 of the Code of Civil Procedure), in accordance with the articles (RELATING TO THE SITUATION OF THE LOSS),
the request for the refund of the fee previously paid in the event of a refund must be made within 10 days of the notification of the decision, and the way for the correction of the decision must be opened.
was unanimously decided on July 2, 2018.