Summary:
It is possible to change the wrong written party name to the court decision by clarification of decision.
a provision finalized by clarification of decision may not be limited, expanded or changed in terms of content.
T.C.
Supreme
General Assembly of Law
Main Number: 2010/0
Decision No:2010/138
K. Date:10.3.2010
(“….The plaintiff requested that the defendant did not pay the debt owed to him and that he objected to the enforcement proceedings initiated and that the cancellation of the objection be decided to collect 40% compensation.
The defendant wished the case to be dismissed.
By the court, the case has been decided upon the adoption of; after announcing judgment, the plaintiff, the defendant according to the population register, the diver surname not Dalkic has learned, the executive proceeding to the final decision of the defendant executed despite putting a bet because he couldn’t asked to be corrected Dalkic tavzihen the surname; by the court, the inner ra requests and surname of the defendant not to follow in the petition dalkic is shown as a diver, and in this way it was decided to refuse any request for clarification of the decision on the grounds that it created; the judgment was appealed by the plaintiff.
Although the judge cannot make a clarification of the decision in a way that changes the original provision and eliminates the final provision, if there are ambiguous and consistent provisions in the decision made in accordance with the provision of Article 455 of the Code of Criminal Procedure, he may make a correction decision to eliminate this ambiguity and agreement. The plaintiff also requested clarification of this aspect, which is ambiguous, by requesting that the defendant’s real surname be corrected in this way with a bet, since his tavzih petition was actually Dalkic, not Dalgıç. In such a case, the court should investigate the real surname of the defendant, determine whether this surname belongs to two separate people or the defendant, and make a decision based on the result. The fact that the Court has made a written judgment in this direction without conducting any examination and research.si is contrary to procedure and law and requires disruption.”)
The case was overturned on its grounds and the file was returned to its place, and the previous decision was resisted by the court at the end of the retrial.
DECISION OF THE GENERAL ASSEMBLY OF LAW
The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the papers in the file were read, the necessity was discussed:
The case is related to the request for cancellation of the appeal; the court is wrong in its decision
clarification of the surname of the alleged defendant has been requested.
clarification of the issue from the decision; the plaintiff’s defendant K. It is understood that the court decided to accept the case and that the verdict was finalized without appeal; it is understood that the defendant’s name is written as Dalkic in the title of the finalized decision.
The plaintiff’s attorney stated that they had learned that the defendant’s surname in the population register was Dalkic during the follow-up for the execution of the finalized decision and requested a suspension on the grounds that the inaccuracy of the surname in the court decision made the execution of the judgment impossible.
The decision of the local court on the rejection of the request on the grounds that the case was concluded according to the enforcement proceedings and the surname of the Diver written in the lawsuit petition was overturned by the Special Chamber on the grounds described above.
The court decided to resist the previous decision on the grounds that there was no material error, there was no contradiction in the judgment, and the execution of the judgment was initiated, and the plaintiff’s attorney brought the judgment to the appeal.
The dispute is whether the decision is ambiguous in terms of the defendant’s surname and whether HUMK’s 455. It is collected at the points whether the conditions for the application of the article have been fulfilled or not.
455 of the Code of Civil Procedure No. 1086. In the Article; ”If the judgment becomes ambiguous and illegitimate or contains reciprocal clauses, each of the two parties may request the approval of the judgment and the refinishing of the tenakuz until its execution” is contained in the regulation.
The explanation of the judgment (tavzih), as stated in the said article; is a legal way applied in order to reveal the true meaning of the judgment, if a judgment is found to be incomprehensible (ambiguous) or has clearly incomprehensible (informal wazih) and contradictory (mutenakiz) clauses.
By way of explanation (exegesis), the provision given cannot be limited, expanded or changed. It is not possible to change the verdict unless the decision is made to return the trial or the verdict is appealed and overturned. The attitude of the provisions cannot be considered as an exception to this. The judge has a duty to reveal the truth here in order to prevent the judgment from being understood otherwise.
clarification, as a rule, happens only about the clause of the provision. Clarification of the decision cannot be applied for the explanation of the reason for the provision. However, if there is a contradiction between the provision paragraph and the justification, the remedy may be applied to eliminate this contradiction (14.06.1967 day and 1967/9-462 E: 300 K of the Dec.(number of signs)
Clarification of decision can also be applied about such decisions of the Supreme Court. although the person who claims that the provision has been changed by clarification of decision can apply for an appeal, he cannot apply for an appeal to the General Assembly of Jurisprudence against the decisions made by the Chamber of the Court of Cassation regarding the interpretation of his decisions (YHGK dated 15.03.1969 and 1969/2-466 E.178 K.(number of signs)
there is no need to wait for the decision to be finalized in order to apply for clarification of decision. Clarification may also be requested about those who have not been finalized until the execution of the judgment (fulfillment). However, with the clarification of the decision, the appeal period does not stop. After the execution of the judgment, it is also possible to request the approval of the judgment until the judgment is fully executed. The verdict is pronounced only by the court that issued it.
The judge cannot decide on the claims that he has forgotten in the judgment by way of tavzih and add it to the judgment. He cannot make a decision by tavzih way and include it in his decision when he forgets about the power of attorney fee or interest while making such a decision. Likewise, the contradiction between the short decision and the reasoned decision cannot be resolved by clarification of Decisioncredit: getty-contributor
The conclusion that emerges from all these narratives is that the judgment that has been finalized through tavzih cannot be limited, expanded or changed (Prof. Dr. Baki Kuru Hukuk Muhakemeleri Usulu, Sixth Edition 2001 volume 5, page 5270 et al.)
When samut is examined in the light of the above explanations, it is clear that the execution of the judgment could not be carried out due to the confusion in the defendant’s surname; the court’s judgment does not have the ability to execute; the decision given is ambiguous.
In this respect: The court should decide by investigating the issue of whether the person whose name and surname are written in the power of attorney, petition, decision and especially the father’s name and date of birth are the same person as the person in the population register, whether these names indicate the same person, while the decision to reject the request for an offer of the provision, which is ambiguous because it does not have the ability to execute in its current form, is not in accordance with the procedure and law.
While the court should comply with the decision to overturn, which points to the same issues, it is against the procedure and the law to resist the previous decision to reject the request with a bet, since there was no material error.
Therefore, the decision to resist must be overturned.
CONCLUSION: With the acceptance of the appeals of the plaintiff’s attorney, the decision to resist was made in the decision to overturn the Special Chamber and for the reasons shown above in Article 429 of the HUMK. In accordance with the Article, it was decided unanimously on the day of 10.03.2010 to be overturned.
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