What Should Be Done in the Face of a Decision of Incompetence or Lack of Competence?
Generally
20 Of the Code of Civil Procedure. in the article, it is arranged that the court making the decision of non-duty or non-duty should send the petition and the case file to the authorized or authorized court.
However, the court that makes a decision of non-duty or non-duty will do this not ex officio, but at the request of the parties. The purpose of this article is to discuss in detail the procedures that must be carried out in order for the petition and the file to be sent to the competent or competent court.
Decision of Non-Duty
The duty of the courts is 1-4 of the Code of Civil Procedure. it is regulated in Decrees and the duty of the court is listed among the conditions of the case in Article 114/1-c of the same law.
1 Of the Code of Civil Procedure. according to the provision of the article; “The rules related to the duty are public order.” in accordance with its provision, the court may decide ex officio that the court is not in charge at any stage of the case, even without a hearing. However, the incompetence of the court may also be asserted by the parties at any stage of the case until the end of the trial (CMK m. 1-4).
The court of first instance may examine the jurisdiction issue ex officio, or after the court has made a final decision on the merits of the case, when the parties to the case apply to a higher court of first instance against the final decision, the Supreme Court, the Court of Appeal,[1] the Supreme Court[2] and even the Dispute Court[3] may examine the jurisdiction issue ex officio before entering into the merits of the case and examine whether the court of first instance is competent.[4 ] For this purpose, the parties do not need to take the decision of the court of first instance to a higher court.
The court that decides the dismissal of the court due to the objection of the authority of the parties to the case or ex officio, must include the rejection of the case due to the dismissal of the case in the decision of dismissal. The court is the competent court and decides to send the file to the competent court, otherwise it must be overturned. As a matter of fact, the incorrect designation of the competent court in the decision of dereliction of duty also requires a violation.
Decision of Incompetence
Without prejudice to the provisions of the special law, the jurisdiction of the courts is 5-19 of the Code of Civil Procedure. it is regulated in its articles and absolute authority is considered among the Decrees of the case. Cases other than final judgment are organized as the first objection.
Accordingly, in cases where there is no definitive authorization rule, the authorization objection, the objection that the dispute should be resolved by arbitration and the division of labor objection are the first objections, and it is not possible to file another first objection. more of these (CMK m. 116).
In cases where there is a definite rule of jurisdiction, the court is obliged to investigate whether it has jurisdiction until the end of the case; the parties can always claim that the court is without duty (CMK m. 19/1).
In cases where there is no absolute authority rule, an objection to authority must be put forward in the response petition.[5] The party objecting to the jurisdiction shall notify the competent court; if there is more than one competent court, it shall be the court of its choice. Otherwise, the duty objection will not be taken into account[6] (CMK m. 19/2). In this case, if the defendant does not object to the authority within the time limit and in accordance with the procedure, the court in which the case is filed becomes competent (CMK m. 19/4).
If the defendant party has notified the duty objection to more than one competent court and has not clearly stated which court it wants the case to be sent to, the duty objection will not be taken into account.[7] Furthermore, even if there is a special competent court other than the courts indicated in the duty objection, it cannot be decided that that court is competent because it is not indicated in the duty objection.
For this reason, it is not possible to evaluate the duty objection, which is not a requirement of the case except for absolute authority, by the court ex officio, and 19 of the Code of Civil Procedure. according to the article, the defendant must file an appeal for authority within the time limit[8] and in accordance with the procedure; otherwise, the unauthorized court will be competent.
Like the defendant who has to notify the competent court in the objection to the dismissal, the court that makes the decision to dismiss must specify the competent court in the decision to dismiss (CMK m. 19/3). . Otherwise, the indication and/or misrepresentation of the competent court in the decision of dereliction of duty requires a violation.
Upon the decision of non-duty or non-duty, the law Decrees that there is no difference between the decisions of non-duty and non-duty in terms of the authority, procedure, duration and results of the application to the competent court, and regulates the issue with the same provision.
Accordingly, if a decision of non-duty or non-duty is made, one of the parties, if there is a legal remedy, must apply to the court that issued the decision within two weeks from the date of finalization of the decision. you may request that the case file be sent to the authorized or authorized court from the date of notification of the decision not to be applied or the rejection of this application. Otherwise, this court considers the case unopened (CMK m. 20/1).
The competent or competent court to which the court issuing the decision of dereliction of duty or dereliction of duty sends the file must automatically send an invitation to the parties (CMK m. 20/2).
As a result
, one of the parties to the case must file a lawsuit for dereliction of duty and dereliction of duty and request that the case file be sent to the authorized or authorized court within 2 weeks from the date of opening of the case. If the legal remedy has not been applied against the decision of incompetence or lack of duty, the finalization of the decision, if the legal remedy has been applied, the rejection of this application from the date of notification of the decision. Otherwise, the duty-free and duty-free court considers the case unopened.[9]
[1] Istanbul BAM 17HD., 11.10.2018 T ., 2018/1898 E., 2018/1584 K.
[2] Court of Cassation 4.HD. 03/03/1966 T., 1965/11160 E ., 19665126 K.; “The fact that the defendant did not object to this decision from the point of view of duty due to the rejection of the case on the merits does not prevent the decision from being overturned from the judicial point of view. In this regard, the decision to dismiss the case from the point of view of duty should be overturned.”
[3] The Court of Dispute HB., 24.09.2018 T ., 2018/411 E ., 2018/469 K.; “The rules of duty are related to public order and should be taken into account automatically (ex officio) by the court. For this reason, since the full decision cases to be filed must also be resolved in administrative jurisdiction, it was decided to dismiss the case due to the absence of a cause of action, and the verdict was determined as follows.”
[4] Istanbul BAM 17. HD., 11.10.2018 T ., 2018/2001E., 2018/1586 K.; “1 of CMK No. 6100. in article 114 of the same law, it is regulated that the duties of the courts can only be regulated by law, the rules related to the duties are public order. in the article the duty of the courts, the Decrees of the court are among the conditions of the case. 115. the article states that whether the conditions of the case exist or not, they will be investigated by the court at each stage of the case.
Since all the explained legal reasons and especially the duty of the court will not create a procedural acquired right for the parties, it is not correct for the court to decide to dismiss the case procedurally due to the absence of a cause of action related to the case. Since it is the duty of the court, it is not correct to make a decision by examining the merits of the case, and the plaintiff’s application for appeal should be accepted without examining the merits and the decision should be annulled. The decision was made by the court of first instance and the decision was determined as follows.”
[5] Izmir BAM. 10. HD., 15.05.2017 T ., 2017/381 E ., 2017/623 K.
[6] Istanbul BAM 16. HD., 12.10.2018 T ., 2017/2517 E ., 2018/2125 K.
[7] Court of Cassation 17. HD., 17.04.2008 T., 2008/415 E., 2008/2012 K.; “23 of the Code of Civil Procedure. according to the article, in order for the duty objection to be valid, the competent court must be clearly stated. As it can be seen, the defendant has authorized more than one court in the duty objection. The objection in question is based on Article 23 of the Code of Civil Procedure. it is invalid because it does not comply with its article. Therefore, while the court should have rejected the duty objection and decided according to the result by going down to the merits, it was not considered correct to reject the duty request.”
[8] Istanbul BAM. 3. HD., 17.01.2018 T ., 2017/1863 E., 2018/34 K.
[9] Court of Cassation 11. HD., 01.03.2010 T., 2018/11249 E ., 2010/2260 K.; “If a case has more than one competent court, the plaintiff has the right to choose to file a lawsuit in one of these courts. If the plaintiff files his case not in any of these general and special authorized courts, but in an unauthorized court, the right to choose passes to the defendant. In this case, there is no legal provision that prevents the defendant from showing more than one court as competent when appealing to the jurisdiction.
Because in the 23rd / last sentence of the Code of Civil Procedure, the provision “the party claiming that the court is not competent must declare the competent court” is included. The presence of more than one competent court provided for in the law and the fact that the designation of several of these courts in the duty objection is interpreted as invalidating the duty objection is not in accordance with the legislator’s purpose and the interests of the parties. The interpretation of legal transactions in a way that may be valid is one of the basic principles (YIBK. 09.10.1946 issue: 6/12, YHGK. 10.02.1960 E.4-6, K.188, 17.02). .1960 E.4-10, K.192).
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