09 September PRINCIPLE OF PROCEDURAL ECONOMICS
Written in the Information Warehouse at 15:45: Barış Kaya 0 Comments
0BEGOTTEN Share Termination of Ordinary Partnership in General
In accordance with the principle of procedural economy regulated in Article 30 of the Code of Civil Procedure No. 6100, the judge is obliged to ensure that the trial is conducted in a reasonable time and in an orderly manner and is not subjected to unnecessary expenses.[1]
It is the duty of the state to conclude cases urgently within the framework of the principle of procedural economics, and the right to trial within a reasonable time is an element of the right to a fair trial and, therefore, a positive status. it’s right for the individual. On the other hand, the state performs a judicial service by providing legal protection to individuals through the courts. For example, paying fees as a condition of litigation aims to reduce the workload of courts in terms of procedural economics (CMK m. 119). In other words, one of the purposes of fees is to prevent people from applying to the judiciary in bad faith.
In order not to impose an excessive burden on the judiciary due to unnecessary applications and therefore to be able to perform the judicial function effectively, it is necessary to charge a fee, provided that it does not make it difficult for people to access the court.[2] Therefore, it is necessary to use the balance mechanism between excessive or unnecessary remuneration and making it difficult to apply for judicial Decrees effectively.
In this study, it is aimed to strengthen the principle of procedural economics and clarify the criteria of the principle of procedural economics with the decisions of the Supreme Court, the Regional Court of Justice and the Constitutional Court.
The Principle of Procedural Economics in Supreme Court Decisions
In the decision of the District Court of Justice, it is stated that it is possible to collect receivables arising from the same decision, the parties of which are the same, on a paid basis through the same case file. he stated that the fees would be paid and that the initiation of separate proceedings without a reasonable and acceptable justification would constitute a violation of procedural economics.[3]
Pays Decrees of the Regional Court of Justice also stated that a fee or expense to be paid by the defendant company in accordance with the contract concluded between the parties of the case is decided if it is left to the plaintiff party in the most serious case. , the judge’s obligation to ensure that unfair and unnecessary expenses are not paid has been violated, and therefore the lawsuit filed by the plaintiff party regarding the payment of this expense by the defendant company will not be contrary to procedural economics. .[4]
In the decision of the District Court of Justice, it was stated that the petition of the lawsuit must be notified to the defendant party before the decision of dismissal is made, otherwise it will constitute a violation of procedural laws and the right to a hearing. ; however, since the decision of dereliction of duty is in place, the removal of the provision and ensuring the fulfillment of the procedural procedure will not provide a retroactive benefit and will not comply with the purpose of the principle of procedural economics.[5]
In the decision of the District Court of Justice, it was stated that in the case filed as an indefinite receivable case, the plaintiff’s lawyer was not given time to change the cost of the case, which is contrary to the law and the purpose of this transaction. October October It was learned that in the reasoned decision of the local court regarding the request for the right to rest, it was concluded that since it is possible to request the remaining receivables with an additional lawsuit, there will be no loss of rights, but the additional lawsuit may be subject to the statute of limitations. it is the opinion of the defense that this procedure will not be in accordance with the purpose of the principle of procedural economics.[6]
In the decision of the Constitutional Court, it was stated that the trial period of 9 years is contrary to the principle of procedural economy and the purpose of the right to a fair trial, taking into account that the applicant did not cause the extension of the term. although it may be considered complicated when criteria such as the difficulty of resolving the legal issue, the complexity of material events, and the obstacles encountered in collecting evidence are taken into account, it is seen that the trial is related to their attitudes and behaviors.[7]
Again, in a decision of the Constitutional Court, it was stated that the expenses made by the applicant before the individual application and the expenses made by the applicant before the individual application were reasonable expenses compared to the amount decided by the local court on 12.12.2015. the merits of the case.[8]
In the decision of the Court of Cassation, it is accepted that a third party who is not a party to the case will always gain the title of a party to the case at the trial stage, taking over the subject matter of the case from the case. he stated that it would be in accordance with the principle of procedural economy for a third party who is not a plaintiff as a plaintiff in the current situation to gain the title of party (plaintiff) in the case.[9]
Result
As a result, it is accepted that the principle of procedural economics differs for each concrete event, since the difficulty of solving the legal issue, the complexity of material events, the obstacles encountered in collecting evidence, the obstacles encountered in collecting evidence, whether the applicant’s attitudes and behaviors cause the prolongation of the trial can also be considered complex, but it does not constitute a violation of the criteria based on the violation of the right to a fair trial protected by the ECHR and the Constitution.
[1] Istanbul BAM 3. HD., 04.05.2018 T ., 2018/832 E., 2018/508 K.; “Duty is a condition of the case and should be taken into account by the judge ex officio and at every stage of the trial. In the concrete case, according to the way the claim is put forward, it is understood that the plaintiffs do not have the title of merchant, and the place subject to sale is housing.
4 of the TCC. it is clear that the concrete incident does not have the nature of a commercial case due to the fact that it is not one of the situations specified in the definition of an absolute commercial situation in the article and that both parties do not have the title of a trader. So; 138 of the CMK in order to ensure that this case is heard ex officio in the Civil Court of First Instance, which is a general court.
CMK 114, taking into account the regulation in its article and the regulation in this article that the parties should be listened to when necessary. the conditions of the case contained in the article and the absence of illegality, CMK 30. within the framework of the article, there is no violation of law and illegality in the decision made by the judge, and an arrangement has been made to prevent unnecessary expenses by taking into account the regulation. by conducting the cases in a reasonable time and in an orderly manner, the defendant’s request for appeal regarding this was rejected.”
[2] Dispute Resolution Procedure Arising from Consumer Transactions, Asst. Assoc. Prof. Dr. Evolution Accesses, p. 111-112
[3] Izmir BAM 8. HD., 20.04.2018 T ., 2018/1782 E., 2018/841 K.; “HMK’s 30. the principle of procedural economy in the article is regulated as follows: “The judge is obliged to ensure that the trial is conducted in a reasonable time and in an orderly manner and that unnecessary expenses are not incurred”. It is possible to collect receivables arising from the same parties and the same decision by paying fees through the same tracking file.
The initiation of separate proceedings without a reasonable and acceptable justification will constitute a violation of procedural economics. In the concrete case, Çanakkale 1. Ankara 8 with the decision that is the subject of the follow-up file numbered 2016/3387 of the Directorate of Execution. Since the decision that is the subject of the follow-up file numbered 2014/23779 of the Execution Directorate is not the same, the decisions are not the same.
Since there was no difference of judgment or repeated follow-up on the basis of both follow-up files, the defendant, who served as a nurse on the staff of the Ministry of Health, was assigned to Çanakkale from Ankara on 14/03/14/03. the decision on the increase of alimony dated 2016, Çanakkale 1. It is understood that the follow-up file numbered 2016/3387 of the Enforcement Directorate does not contradict the principle of procedural economics, and the decision of the court of first instance to cancel the follow-up is within this scope. it is not in accordance with the procedure and the law.”
[4] Izmir BAM 14. HD., 27.02.2018 T ., 2018/79 E ., 2018/229 K.; “Although the plaintiff has given a power of attorney to the defendant company representative in order to ensure the performance of the contract in accordance with the defendant company’s notifications, it is understood that the plaintiff filed this lawsuit by the defendant contractor after the plaintiff did not ensure the performance of the contract. the respondent contractor’s performance of this obligation is subject to Article 3 of the contract. the contractor, despite the fact that the costs of obtaining a building usage certificate (usage license) for the C-Block, which falls to him in accordance with the article, are regulated in the contract, which belongs to the defendant.
30 of the CMK numbered 6100 entitled “The principle of procedural economics”. in the article“ “The judge is obliged to ensure that the trial is conducted in a reasonable time and in an orderly manner and does not lead to unnecessary expenses.”; 33 of the same law entitled “Application of laws”. the article contains the provision ”The judge applies Turkish law ex officio”.
Based on the issues put forward by the plaintiff in the lawsuit petition and the construction contract signed between the plaintiff and the defendant, the file related to the 6 independent sections contained in the C Block 640 Ada 331 Parcel and the statements reflected to the plaintiff are Dec. 3 of the contract. in accordance with the clause, the independent divisions belong to him (although he later sold them). 3 Of the contract.
According to article 30 and 33 of the CMK of the defendant company, although the obligation to obtain a settlement certificate (employment license) and cover the costs belongs to the defendant company, the defendant company, from the point of view of the Defendant company, the defendant company described above. it is understood that he has filed this lawsuit in order to ensure that the costs of obtaining this residence certificate (workplace use license) are covered within the scope of the articles. the defendant belongs to the company and therefore the costs belong to him.”
5] Istanbul BAM 17. HD., 31.01.2018 T ., 2018/49 E ., 2018/138 K.; “The decision made by the court on the grounds that the consumer court is competent for the reasons explained is correct. However, it is not in accordance with the procedural law that the decision of the lawsuit petition is made without notifying the defendant. 27 of the Code of Civil Procedure No. 6100. in article 2 / a, the right to be heard legally is considered within the scope of the right to be heard legally, and in subparagraph 2/a, to have information about the trial is considered within the scope of the right to be heard legally.
In this sense, it should be accepted that the defendant’s right to be heard has been violated. However, since the decision of dismissal made by the court is in place, the removal of the provision and the execution of this procedural procedure for the purpose of blocking the right to a hearing will not provide a retroactive benefit and will not constitute an illegality. CMK’s 30. in accordance with the principle of procedural economy regulated in the article, it is sufficient to indicate the inaccuracy in this matter, and since the plaintiff’s grounds of appeal related to the court’s field of duty are not accepted on the spot, it is necessary to decide on the rejection of the appeal. the application has been submitted and the following decision has been made.”
[6] Izmir BAM 9. HD., 10.05.2017 T ., 2018/831 E ., 2018/500 K.; “From the examination of the file; the local court transferred the file to an expert witness to calculate the receivable items subject to litigation during the trial, the report prepared by the expert witness was objected to by the lawyers of the parties and a new expert examination was requested in the file, but the Court at the hearing dated 05.09. In its decision dated 05.09.2016 and numbered 2016, the Court rejected the request of the party’s lawyers to re-examine the expert witness on the grounds that the request for a re-examination of the expert witness would not have an impact on the result and would prolong the trial period.
In the case, the plaintiff’s attorney requested an extension of time for filing an amendment petition, but the court rejected the plaintiff’s attorney’s request for an extension of time for filing an amendment petition at the same hearing on the grounds that “the hearing cannot be held”. “It was postponed for this reason only in accordance with the regulations in the CCP” and in compliance with the request, 05. Decision dated 09.2016, Based on 2015/735, numbered 2016/339.
The local court stated in its justification that it was concluded that there would be no loss of rights since it was possible to claim the remaining receivables with additional litigation. Oct. But it is clear that this will not be practical. October October, considering the contradiction of the additional case with the time-out defense and the fact that the procedural provisions will be applied from the beginning in the additional case, which is a new case, it is obvious that it will be more practical to reach the right. By way of amendment. Additional litigation imposes an extra burden on the plaintiff October in obtaining the right. This situation is the 30th of CMK No. 6100. it is contrary to the article.”
For a Precedent Decision, see Izmir BAM 9. HD., 10.05.2017 T ., 2017/156 E ., 2017/501 K.
[7] Constitutional Court 1. B., 08.12.2016 T ., 2014/12191 B.; “The applicant claimed that his right to be tried in a reasonable time had been violated during the trial, which lasted for about nine years. Claims that the proceedings regarding civil rights and obligations were not concluded in a reasonable time had previously been made as the subject of an individual application, and the Constitutional Court had accepted that the right to trial in a reasonable time fell within the scope of the right of application.
A fair trial and the complexity of the case, the number of trial degrees in determining whether the trial period is reasonable in a case, the attitude and nature of the parties and relevant authorities in the trial were indicated. the applicant’s interest in the immediate conclusion of the case will be taken into account (Güher Ergun et al., §§ 34-59) and as a result of the examinations conducted in this context, his right to trial has been violated for a reasonable period of time (Gülseren Gürdal et al., B. No.: 2013/1115, 05/12/2013; Semira Babayiğit and Others, B. N.: 2013/3283, 19/12/2013; Haydar Izgi, B.) No: 2012/673, 19/12/2013). Issue: 2013/1115, 05/12/2013; Semira Babayiğit and others, B. No: 2013/3283, 19/12/2013; Haydar Izgi, B. No: 2012/673, 19/12/2013).
The subject matter of the application relates to the cancellation of the appeal filed with the civil court of first instance in the capacity of the consumer court. the start date of the reasonable time assessment of the concrete judicial activity carried out according to the procedural provisions of the abolished Civil Procedure Law No. 1086 dated 18/06/1927 and Law No. 1086 numbered 6100 is the date on which the civil rights and obligations related case, the trial period for the resolution of the dispute began (Güher Ergun et al., § 50), this date for the concrete application is 13/7/2005.
The expiration date of the term is the date on which the trial, which mostly includes the execution phase, ends (Güher Ergun et al., § 52). In terms of concrete implementation, this date is the 19th of the Court of Cassation. This is the date of 07/04/2014 when the Law Office rejected the request for correction of the decision.
As a result of examining the legal process on the subject of the application, in the case filed on 13/07/2005 against the applicant, the Court decided to partially accept the case on 06/12/2005, this decision was overturned on 06/12/2005. On the grounds that the outcome of the criminal case related to the incident subject to the lawsuit should be expected, the relevant criminal case was made a pending matter, and the second decision on the subject of an individual application was made on 19/3/2013 on 19. The Civil Chamber of the Court of Cassation issued its second decision on 11/12/2013.
The Civil Chamber of the Court of Cassation upheld this decision on 11/12/2013, and the applicant’s request for correction of the decision was rejected by the same Chamber on 7/4/2014, and the decision was finalized as of that date. Thus, the judicial process, which was completed in about nine years by waiting for the result of the criminal file, which has been made a subject of curiosity for a long time, was completed in about nine years.
As a result of the evaluation of the application, although the subject of the application is complex considering criteria such as cancellation of the appeal, difficulty of solving the legal problem, complexity of material events, considering that the applicant did not prolong the trial by his attitude and behavior, obstacles encountered in collecting evidence, given that there is no issue that requires a different decision to be made in terms of the concrete application and there is an unreasonable delay in the trial, the trial period completed in about nine years. For the reasons explained, the applicant’s Article 36 of the Constitution. it must be decided that the right to trial within a reasonable period of time guaranteed in the article has been violated.”
[8] Constitutional Court 1.B., 17.11.2016 T ., 2014/774 B.; “In the concrete case, the trial expenses that the applicants complained that they had to endure arose during the trial related to the expropriation fee determination and registration case filed by the administration. The applicants participated in the case through their lawyers and actively participated in the trial. The court charged the plaintiff administration with the costs of the trial at the end of the expropriation fee determination and registration case, which is the subject of the concrete application, but decided that the plaintiff administration and the plaintiff administration should pay each other a lawyer’s fee of 1,200 TL. they were represented by a lawyer. On the other hand, the applicants had to pay an objection confirmation fee of TL24.30, a decision correction fee of TL 50.45 and a fine of TL 219 due to the rejected decision correction request.
Following the decision of the Criminal Court of First Instance dated 04/08/2010 during the trial process, TL 98.638 was paid to the applicants as the expropriation fee, and at the end of the trial, the total expropriation fee was finalized as TL 136.850. Paid payable by the applicants to the plaintiff administration by the court of 200 TL is a reasonable amount compared to the amount of expropriation in question, and given that the applicants were paid the same amount of power of attorney fees, upon the decision to mutually pay, it was concluded that the attorney fee ruled against the applicants was not of a nature and proportion to prevent the applicants from accessing the court.
In addition, it is understood that the 74,75 TL fee and 219 TL fine detailed above are aimed at reducing the number of cases and enabling the courts to resolve disputes within a reasonable period of time without unnecessarily preoccupying the courts. And since it was understood that these amounts did not reach a high amount that would prevent access to law enforcement investigations, it was concluded that there was no clear and visible violation of the right of access to the court.
For the reasons explained, since it is understood that there is no clear and obvious violation in terms of the applicants’ claims regarding the right of access to the court, it should be decided that this part of the application is inadmissible due to lack of clear justification without examination. Other conditions of admissibility.”
9] Supreme Court 3. HD., 21.02.2017 T ., 2016/13540 E., 2017/1715 K .; “In a lawsuit filed by a person (plaintiff) who does not bear the title of party, it should also be emphasized whether the title of party can be won at the trial stage. In other words, if it is possible to win the title of party (plaintiff) at the trial stage, it will be in accordance with both laws to grant this opportunity to the relevant person in the current file and to continue the case if the title of party is won as a result.
Article 141/4 of the Constitution of the Republic of Turkey No. 2709 and Article 30 of the CMK No. 6100. article (77 of CMK No. 1086. in accordance with article 125 of the CMK, the “principle of procedural economics” and “transfer”. the “subject matter of the case” provision of the article (CMK 1086 numbered 186. item).
Because the CMK number 6100 is 125. according to the article (CMK 1086 No. 186. article) In accordance with the “transfer of the subject of the lawsuit” provision, due to the transfer of the subject of the lawsuit by a third party who is not a party to the lawsuit from the plaintiff, the case will always gain the title of a party to the case at the trial stage, and it is in accordance with the principle of procedural economy that a third party who is not already a plaintiff should also be allowed.
in the lawsuit filed to win the title of party (plaintiff) in the case. When the concrete incident is evaluated in the light of the above-mentioned principles, the plaintiff party will receive the receivables in this case file. 21. This issue was approved by the notary Public dated 30.04.2014 and numbered 65894 with the transfer of receivables agreement dated 30.04.2014 and this agreement was submitted to the case file and this issue was stated in the minutes of the hearing dated 05.09.2014. Accordingly, the plaintiff has lost the title of the party (plaintiff) with the assignment in question.
In this case, the assignee that the court will receive is …ASH. While it is necessary for the court to determine whether to continue the case, it is necessary to continue the case if it gains the status of a party, otherwise the case should be dismissed due to the rejection of the case. Due to the lack of party (plaintiff) status, it was not considered correct to make a written decision about the plaintiff without taking this issue into account and it required overturning.
You can reach our other article samples and petition samples by clicking here.