Transfer of the Subject Matter in Civil Cases
In a case that is being heard in Civil Courts, the parties to the case may make a number of savings related to the subject of the case. The provisions to be applied differ according to the nature of the saving party.
In case the subject matter of the lawsuit is transferred by the defendant, the plaintiff has been granted two optional rights. The first option is the right to abandon the lawsuit filed against the transferee and continue the lawsuit against the person who took over the subject of the lawsuit. In this case, the case is a continuation of the old case and the new defendant is bound by the procedural actions taken. With the opening of the case, the time-out or confiscation periods remain valid from the date of opening the first case. The second discretionary right that the plaintiff can exercise is the right to turn his case into a claim for damages against the transferring party. If the plaintiff turns his case into a compensation case against the first defendant, this case is considered a continuation of the first case filed.
The legislator has arranged the fate of the trial expenses if the plaintiff exercises his first discretionary right. If the plaintiff wins the case, the transferor and the transferee will be jointly and severally responsible for the costs of the case. If the defendant transfers the subject matter of the case, it is assumed that the plaintiff does not follow the case if the plaintiff does not exercise any of his electoral rights. CMK’s 150. according to the article, it will be decided to remove the file from the trial.
If the subject matter of the lawsuit is transferred by the plaintiff after the lawsuit has been filed, the inheritor replaces the plaintiff in the ongoing lawsuit and the lawsuit continues where it left off. The important point here is that the new plaintiff cannot request a repeat of the previous procedural proceedings. The new plaintiff will continue the first case in the same way. Supreme Court 14. The Law Office has a decision on the transfer of the property subject to the lawsuit (14. HD., E . 2016/9327 K. 2017/156 T. 11.1.2017). The aforementioned decision
“The decision has been appealed by the plaintiff’s attorney against the defendant.
Even after the lawsuit has been filed, it is possible to transfer the rights or property subject to the lawsuit to third parties due to the right to save. In this case, it is unthinkable for the case to continue as it was opened, since the authority to pursue the case, which is a condition of the case, has disappeared.
CMK No. 6100 m. according to Article 125/2, “If the subject matter of the lawsuit is transferred by the plaintiff after the lawsuit has been filed, derdest takes the place of the plaintiff who took over the case and the case continues from where it left off. left.”
The court shall take into account the transfer of the subject matter of the case to a third party ex officio. However, the judge will not dismiss the case due to the disappearance of the cause of action, but 125 of the CMK. in accordance with the article, he will give the other party a preliminary period to exercise his right to election, which is an exception to the ban. do not change the case or defense.
In a concrete case; When the land registry records in the file were examined, it was seen that some of the owners of the independent sections in the 9 parcels subject to the lawsuit had changed. In this case, the court, in accordance with the principles described above and CMK numbered 6100 m. According to Article 125/2, the plaintiff must duly involve the new owners in the case and decide to continue where the case left off. in their presence. It is not correct for the case to be heard and concluded in the presence of the person who transferred the immovable property. According to the provision of Article 125 of the CMK, the decision must be annulled in order to be processed.”
Supreme Court 19. The Law Department has a decision on the transfer of the property subject to the lawsuit (19. HD., E . 2015/3020 K. 2015/6481 T. 30.04.2015). The above-mentioned decision states that:
“The plaintiff’s attorney, the defendant’s company Ankara 27. Enforcement Directorate initiated enforcement proceedings against its client by claiming that the defendant company had a payable balance of TL 36,174.06 out of the invoice amount of TL 40,674 with the follow-up file numbered 2013/1482, and the payment order in the amount of TL 06 was notified to the client on 18.02.2013. the year is 2013 and the tracking has been finalized, the invoice shown as the subject of tracking does not have the client’s signature and stamp, the goods subject to the invoice have not been delivered by the client firm, and there is not even a contract between them and the client firm.
Dec. 20% compensation was demanded and a lawsuit was filed by the parties related to paying the price in exchange for purchasing goods and services due to the determination that the client firm is not indebted and malicious pursuit.
The defendant’s lawyer requested that the case be dismissed.
The court stated that the burden of proof in the case belongs to the defendant seller, the defendant seller is obliged to prove the existence of the sales contract, the goods covered by the invoice are delivered to the seller on a follow-up basis.
Plaintiff, the defendant did not submit any evidence, but an expert examination was conducted on the commercial books of the parties in accordance with Article CMK 222/1, taking into account that the case was a commercial case, the report stated that the invoice based on the case was not registered in the plaintiff’s books but registered in the defendant’s wage, the existence of the contract and the delivery of the goods could not be proved by the invoice and the plaintiff could not prove that the delivery of the goods by waybill was empty, so the recipient part of the invoice was empty, and the plaintiff could not prove that the case was malicious, it has been decided to determine that the plaintiff has no debt from Ankara to the defendant. 27.
The decision regarding the rejection of the claimant’s claim for compensation for bad faith with the follow-up file numbered 2013/1482 of the Enforcement Directorate was appealed by the lawyers of the parties within its period.
Ankara 27. From the examination of the follow-up file numbered 2013/1482 of the Enforcement Directorate, it is understood that the subject of the follow-up has been assigned while the trial is ongoing.
In article 125 /fI CMK, “If the defendant transfers the subject matter of the case to a third party after the lawsuit has been filed, the plaintiff may use one of the following powers:
a) If he wishes, he can continue the case against the person who transferred the subject matter of the case by giving up the case he filed against the transferee. In this case, if the plaintiff wins the case, the transferor and transferee will be jointly and severally responsible for the costs of the trial.
b) If he wishes, he can turn the case he has opened into a compensation case against the inheritor.”
Although the court should ask the plaintiff in which direction to use the right of preference in accordance with the aforementioned provision and decide by continuing to judge according to the result, it is contrary to procedure and law to make a decision without taking this issue into account. .”
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