The competence of the party in a case is one of the conditions of the case (CMK m. 114/1-d), and the driver’s license of one party is possible by having the driver’s license to enjoy civil rights (Md. 50). CCP). The license to enjoy civil rights, that is, the license to exercise rights, begins at the moment of fertilization and continues until death, provided that the person is born full and alive. Therefore, the personality of natural persons and the license to enjoy civil rights expire with death.
(TBK m. 513). Because the objective trial license is the license to conduct the case on behalf of the person or through a representative appointed by his will and to perform the relevant procedural procedures (Article 28). TTC). Therefore, heirs cannot sue for rights that are not covered by the term and cannot be legally transferred to heirs after death.[1]
Art. 6100 of the Civil Procedure Law dated 12/1/2011. 55/1 md. 55/1; “In the event of the death of one of the parties, if the heirs have not accepted or rejected the inheritance, the case is postponed until the deadlines set by law on this issue have passed, but the judge may decide to appoint the heirs as heirs. In cases where there is an objection to delay, the trustee follows the case upon request”, if one of the parties dies during the trial, it is not possible for the deceased person or the defendant to follow the case, since the title of the deceased party will expire.
As a rule, his lawyer continues the case, and if the subject of the case is related to the assets of the deceased person, the case can only be continued by the heirs of this person, and the provision to be made at the end of the period positively or negatively affects the rights of the heirs of the case. In this case, the heirs of the deceased party who do not reject the inheritance should pursue the case together as mandatory litigation partners. However, it is clear that this provision does not need to be applied in cases that do not pass to the heirs and are not related to the death of the party.[2]
However, the death of one of the parties during the lawsuit and the filing of a lawsuit against the deceased party have different consequences; therefore, the death of one of the parties during the lawsuit and the filing of a lawsuit against the deceased party are discussed under separate headings below.
The Death of a Party During the Trial
According to the Turkish Civil Code, inheritance opens with death, and the heirs’ right to inheritance is born from this moment and is legally guaranteed. Except for the cases clearly written in the law, all the receivables, rights and property of the deceased person are transferred to the heirs. In this case, since all rights, property and debts belonging to the deceased will pass to the heirs except those clearly written in the law, and since the rights that are converted into property by filing a lawsuit will form part of the inheritance share, it is possible for the heirs to pursue these cases related to the deceased’s assets.
In other words, the right to pursue cases transferred to plaintiffs also includes cases that are likely to turn into a material right in the future. Because the case falls within the scope of the concept of ”right”. Therefore, the right to sue, like other rights, passes to the heirs in the event of the death of the deceased.
According to the provision of the first paragraph of Article 605 of the TMK, “Legal and appointed heirs may refuse inheritance.” In accordance with the provision of the first paragraph of Article 606 of the TMK “Inheritance can be rejected within three months”, it was reported that legal and appointed heirs can reject the inheritance within three months. It was reported that this three-month period is the confiscation period, this period will start on the date they learn about the death of the heir, and the appointed heirs will start from the date on which the right to savings is officially notified to them. the heiress.
55 of the Code of Civil Procedure No. 6100. in the article; “In the event of the death of one of the parties, if the heirs have not accepted or rejected the inheritance, the case is postponed until the deadlines set by law on this issue have passed, but the judge may decide to appoint the heirs as heirs. the trustee follows up the case upon request in cases where it is inconvenient to delay.” If one of the parties dies until a decision is made in a case, the heirs who do not reject the deceased’s inheritance in this case must pursue cases that also concern the deceased’s heirs and affect the property. the rights of the heirs, together as partners in the compulsory litigation. [3]
Therefore, if the inheritance is not rejected by the legal and appointed heirs within a 3-month period, the right to continue the case will be in question. But the hearing of the heirs by the court and 6. in accordance with the right to a fair trial under the article “the right to be heard by law”, it is necessary to provide the opportunity to put forward all kinds of claims and reject counterclaims. aihm.
Because in a decision of the Court of Cassation; “27 of the Code of Civil Procedure No. 6100. the article regulates the ”right to legal rest”. Accordingly, the parties to the case have the right to receive information, explanations and evidence related to the trial. As explained in the justification of the article, this right is granted by Article 36 of the Constitution. article 6 of the European Convention on Human Rights. it is the most important element of the right to a fair trial regulated in the article. This right, also known as the right of claim and defense, is the right of the parties.
It is imperative that the parties are fully informed, that they fully and equally exercise their rights to disclosure and proof, and that judicial bodies make correct evaluations and decisions by taking these disclosures into account. The judge cannot make a judgment without listening to the parties or inviting them to exercise their rights of explanation and evidence in accordance with the law.”[4] Another decision states as follows; “It was understood that the accused died during the trial, after the case was opened, but without a decision being made. Of the court, CMK 124.
According to the article, it is necessary to give the plaintiff time to identify the heirs and include them in the case, and the evidence shown by the heirs involved in the case must be collected and included in the case. To the result to be obtained. “[5], It is stated that party organization is a condition of the case, that party organization is important not only at the trial stage, but also at other stages of the trial, so it should be taken into account by the parties. At each stage of the case, the court must automatically notify the parties of the petition and the date of the hearing, and notify the heirs of the deceased party to ensure the organization of the party.
In the event of the death of one of the parties during the case, there may be differences in the procedures to be followed depending on whether the deceased party is a plaintiff or a defendant, the type of case and the stage of the case. For example, the Court of Cassation concluded in a decision that if a plaintiff dies during a lawsuit, “the court should duly notify the plaintiff’s heirs and ensure that heirs who do not reject the inheritance participate in the lawsuit”. If they are considered mandatory litigation partners and the heirs refrain from pursuing the case together, a trustee is appointed to the inheritance company and the case is continued after the condition of being a party is met.”[6]
However, if the deceased defendant is the defendant, the case continues together against all of the defendant’s heirs. In this case, the court must inform the legal heirs of the deceased plaintiff of the date and time of the hearing. In this case, the court’s duty is to inform the heirs of the deceased party that they must follow the case together with the notification, to inform that if only one heir will follow the case, the heir who will follow the case must follow the case. if it is the others or the inheritance company, the case should be followed up through the representative to be appointed to the inheritance company, and whichever of these situations occurs, the trial should be continued and the case should be concluded.
Explanations with examples are given below in terms of the type of case and the stage reached. For example, in administrative proceedings, if one of the parties dies while the case is ongoing, the heirs are entitled to 55 of the CMK. He may continue the case in accordance with article 26 of the Administrative Procedure Law numbered 2577; this rule. It is specially arranged in the article.
26 of the Administrative Procedure Law No. 2577. the article is as follows: “1. In the event of a change in the persons or qualifications of the parties due to death or any other reason during the trial, the relevant court decides to postpone the file until the application of the party who has been granted the right to pursue the case. O; In the event of the death of the natural person party, the relevant court decides to remove the file from the process until the administration renews the case against the heirs.
If the renewal petition is not submitted within four months, the decision to stop the execution, if any, becomes null and void on its own. 2. Only petitions related to cases related to the deceased person are canceled.” The provision in question states that the right to pursue cases other than those involving only the deceased person may pass to the heirs; however, it is not specified which types of cases these cases are.
Paying payable to the plaintiff from the two dams given in exchange for the cotton delivered in 1956, the Council of State stated in its decision; “The lawsuit has been filed with the claim that the claimant’s share has not been paid and that the amount to be calculated from this date should be decided to be paid together with the legal interest. when the population registration sample taken from the UYAP Integration system was examined during the appeal stage, where he has been paid since 1957, it was understood that plaintiff K1 died on 30.4.2013, and the following must be accepted in the dispute. The transaction that is the subject of the lawsuit is not a transaction that concerns only the deceased person, since the right to the alleged debt will legally pass to the heirs.” Examples are given for cases related to heirs.[7]
In another decision of the Council of State; “Cases involving only the deceased are those related to naturalization, deportation, cancellation of exams, etc., which are not the subject of the plaintiff’s death, especially related to rights that are not suitable for inheritance to heirs, which are directly related to the plaintiff’s death. Cases are. It is the person of the plaintiff and has been shaped by the practices in practice.”[8]
In the event of the death of one of the parties during the divorce proceedings, the court will no longer be able to rule on the divorce, since the marital union will end with death. However, the plaintiff’s heirs can continue the case and ensure that the defendant spouse is excluded from the inheritance by proving that the defendant spouse is defective in the opening of the divorce case.
In this case, if the court finds that the defendant spouse is defective, it cannot mention that the defendant spouse will be disinherited in its decision. The court can only decide as follows: “Since the marital union has ended due to death, there is no place for a divorce decision to be made, and it was found that the defendant spouse was defective in filing the divorce case.” With this decision, the heirs can apply to the civil court of peace and obtain an inheritance certificate from the court by declaring that the defendant spouse cannot be the heir and that it has been determined that the defendant spouse is defective in the divorce case. the defendant’s spouse is not the heir. For this, the decision of the family court will have to be finalized.
As a matter of fact, in a decision of the Court of Cassation; “The defendant requested that the decision be corrected, and this request was rejected on 20.03.2012. However, the plaintiff husband died on 12.03.2012 before the decision correction examination, and since this issue is not known by the Supreme Court, the defendant’s request for decision correction was reviewed and rejected by our Department on the merits.
The marriage ended with the death of the plaintiff before the review of the correction of the decision, and the death will affect and change the decision of the Supreme Court. Since the plaintiff died on the date of the decision correction review, the marriage was terminated by death, and there is no ongoing divorce proceedings in this case. In this regard, there is no basis for the Department’s decision to reject the request for correction of the decision. The decision of our Chamber based on material error for the reasons explained
Since the divorce case has no validity due to death and the plaintiff is the heir, in order to make a decision on this issue, it is necessary to cancel the decision, accept the defendant’s request for correction of the decision and cancel the local court decision. He pursues the case imperfectly.”[9] Noting that the case continues even at the stage of correction of the decision, there is no place to decide on a divorce, since the marriage will be considered terminated by death if one of the parties dies at this stage, and it is necessary to determine whether the defendant spouse is defective in opening a divorce case.
In an agreed divorce case, it is clear that if one of the parties to the case dies after the contentious divorce decision is made, but before the decision is finalized, the marriage will be considered terminated by death, and a decision should be made to determine this. The fault of the deceased party due to the will of the heirs.[10]
On the other hand, if an individual application has been submitted to the Constitutional Court and the applicant dies after the date of the individual application, there is no provision in the Law No. 6216 on the Establishment and Trial Procedure of the Constitutional Court and the Rules of Procedure. The procedure related to the procedure to be applied. For this reason, according to the nature of the individual application, the provisions of the relevant procedural laws regarding the procedure that will be applied if the applicant dies after the application date will be applied.
In many decisions of the Constitutional Court; “The Constitutional Court, whose main task is to interpret the Constitution and therefore determine the scope and limits of the fundamental rights and freedoms contained in the Constitution, does not comply with the nature of the individual application for heirs who do not reject the inheritance within 3 months, if the Applicants die after the date of application, the continuation of the application will prevent the Court from fulfilling its primary duty and therefore remove the Court from its duty. its basic function, and therefore the 80 of the Rules of Procedure. the provisions of paragraph (1) of the article shall apply. The Rules of Procedure are 80.
According to paragraph (ç) of Article (1), the Court may decide to reject the application if it believes that there is no reason justifying the continuation of the examination of the application; however, 80 of the Rules of Procedure. in accordance with paragraph (2) of the article, the examination of the application may be continued if the examination of the application, the interpretation of the Constitution or the scope and limits of fundamental rights are determined or human rights are respected. It makes it necessary.” [11]
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