Although the conditions of the case are subject to many distinctions, an important distinction from the point of view of the subject of investigation is that the conditions of the case are divided into general conditions of the case and special conditions of the case.
According to this, CMK’s 114. since the case conditions listed in the article are valid for each case, they are referred to as general case conditions. In the second paragraph of the same article, “The provisions related to the conditions of litigation contained in other laws are reserved.” it is said. Accordingly, in addition to the general conditions of action listed in the CMK, there are also regulations that provide for special conditions of action in some individual cases.
The best example of the special case requirements is the explicit provision in Article 277/1-b,1 of the EBL that the creditor must have an incapacitated document in order to file a cancellation claim under the EBL. In addition, in order for a debt relief lawsuit to be filed, the plaintiff will receive 15% of the debtor (EBL m. 69) deposit as collateral, and in order for a divorce case to be filed, a divorce case must be filed due to abandonment. , the notification of the notification decision to the defendant spouse and the expiration of two months from the notification of the notification decision (Civil Code m. 164/2) is an example of the special case conditions explicitly regulated in the relevant special laws.
Again, in order for a cancellation lawsuit to be filed in accordance with articles IBL 277-284, the creditor must have a bankruptcy certificate (EBL m. 143, 105); to the bankruptcy document showing that the creditors of the heirs do not have the power to collect their receivables from the heirs with a reserved share so that they can file a cancellation lawsuit (EBL m. 153, 105) they must have. and the heirs must not have filed an annulment lawsuit despite the notification (Civil Code m. 562).
In a decision of the Constitutional Court, in Individual Applications, if the application fee is not paid during the application or the request for legal aid is rejected in applications filed with a request for legal aid, the application must be rejected by procedure in accordance with Article 6100, Article 115, paragraph 2, of Law 6216, article 49, paragraph 7, because the application requirement has not been fulfilled.[1]
In the case law of the Court of Cassation, a number of special conditions are stipulated in addition to the requirement for a bankruptcy certificate, which is considered in the law, in cases of cancellation of savings. These conditions are stated in a decision as follows; “The case is referred to as Section 277 of the EBL. and its continuation relates to the request for cancellation of the savings filed in accordance with the articles.
In order for such cases to be heard, the plaintiff must have a real receivable from the defendant debtor, the enforcement proceedings against the debtor must have been finalized, the savings subject to cancellation must have been made after the origination of the debt, and must have been made after the origination of the debt. there is a certificate of incapacity received about the debtor, and the existence of these conditions must be evaluated by the court ex officio.”[2]
In addition to the bankruptcy document, the Court of Cassation has also stipulated a number of special litigation conditions and has insisted in its decisions that these conditions should be sought in the concrete case. Other conditions other than the bankruptcy certificate are not regulated in the EBL.
The conditions specified in the Supreme Court decisions for the cancellation of savings filed according to the general enforcement law are as follows; 1- The presence of a valid bankruptcy document, 2- The plaintiff has a real claim from the defendant debtor, 3- The presence of a finalized enforcement proceeding, 4- The savings subject to cancellation must have been made after the defendant’s birth. debt. These conditions are sought in cancellation cases filed within the scope of the general enforcement law.
The equivalent of the conditions listed in cancellation cases filed under public enforcement law can be determined as follows: 1- The presence of a finalized public receivable, 2- The follow-up made by the collection department for the finalized public receivable must be finalized, 3- The public receivable must have been born before the canceled savings.
It is possible that the deficiencies in some of the circumstances of the case discussed in detail above may be corrected during the trial. In these cases, it is not decided to dismiss the case by procedure and the party is given a certain period of time to remedy the deficiency (CMK m. 115/2). Deficiencies such as the absence of a Power of attorney, failure to deposit an advance, are such deficiencies.
However, if the deficiency is not corrected within the given time, the court will dismiss the case from the procedural point of view, since there is no legal requirement. If the absence of a lawsuit requirement is not recognized by the court and is not put forward by the parties, but if this deficiency is corrected before the judgment is given, it will not be possible to dismiss the case from the procedural point of view (CMK m. 115/3). .
solution
As a result, the importance of the general and special conditions of the case is that their presence or absence can be automatically observed by the judge at each stage of the case and the parties can assert the deficiency at each stage of the case. hearing of the case and making a decision on the merits (CMK m. 115/1).
If the conditions of the case are incomplete, the case must be dismissed from the procedural point of view. However, if it is possible to eliminate the deficiency, a certain period of time is given for the completion of the deficiency. If the deficiency is not corrected within this period, the case will be rejected by procedure due to the lack of formation of the conditions of the case. If the conditions for filing a lawsuit exist, only in this case will it be examined whether the right asserted by the plaintiff (the main claim) is justified.
On the other hand, if the deficiency in the conditions of the case was not noticed by the court before the merits of the case were entered, it was not put forward by the parties, but this deficiency was corrected at the time of the judgment, it is not possible to dismiss the case from the procedural point of view due to the lack of initial conditions of the case (CMK m. 115/3).
Despite all the explanations, it is not always easy to determine whether a subject regulated by law is a special case requirement. In this case, in particular, it is necessary to look at whether the specified condition prevents the examination of the merits of the case and whether it was taken into account by the judge on its own.
[1] AYM 30.06.2016 T., 2014/963 K.
[2] The judge. 17. HD, 20.05.2009, 2951/3395, transl.: Guneren, A..: Cases of Annulment of Rations and Savings in Execution and Bankruptcy Law, Ankara 2012, p. 375.
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