General Assembly of the Court of Cassation
E. 2018/374
2018/943 K.
Court of First Instance: Court of First Instance
At the end of the trial held between the parties due to the case of “wrongful determination and moral compensation”, Ankara Dec. 6.12.2013 and 2011/189 E. numbered, issued by the Court of First Instance upon acceptance of the case, 2013/374 K. court of Cassation No. 19. the decision was appealed by the defendant’s attorney. 10.02.2014 day and 2013/19421 E of the Directorate of Legal Department. numbered, 2014/2667 K. with the numbered decision:
Paying paid compensation to the defendant from the payment made on 10.05.2011 by continuing the foreclosure proceedings filed by the defendant in the lien proceedings filed against his client on 15.04.2011, the plaintiff’s attorney decided that the defendant’s compensation debt should be determined by the court, 5.000 TL moral compensation should be paid and a lawsuit should be filed for collection from the defendant’s decision by performing the following actions by specifying the client’s residence of the defendant.”……………..
The defendant’s attorney paid a total of 4,000 TL to the client and argued that the plaintiff should sign the document stating that the entire debt had been collected at the client’s request, that this document would be signed by the client if it was written below 4,000 TL, but the plaintiff wrote the amount collected on this document by writing “14,000 TL”, but the file refused, stating that the debt was 14,000 TL.
According to the evidence collected by the court and the expert report; as of 15.04.2011, a fixed interest rate of 13.582,13-TL 29% per file was applied in collecting the debt at varying interest rates, and 78-TL was received by the plaintiff and signed by the defendant, if there is no evidence of any fraud in the presentation of the document dated 15.04.2011, if the document is issued, the debt is paid per file as of the date of payment, although payments have been made, despite the fact that the enforcement proceedings continue, the defendant and the plaintiff’s house have been established the right of pledge, and the plaintiff’s house has been established the right to keep household items,
Despite paying the debt again per file, although it is considered issued in accordance with the injunction No. 72/3 EBL 10.05.2011, the enforcement guarantor does not collect from a third party during the execution proceedings, so it is understood that the injured plaintiff’s honor in a social business environment and therefore the acceptance of moral compensation for the lawsuit on the grounds of injury; it was decided that the plaintiff had no receivables in the enforcement follow-up file subject to the lawsuit as of 15.04.2011, the 4.400-TL bad faith compensation calculated at the rate of 40% of the claimant’s receivables should be taken from the defendant and given to the plaintiff, and the 5.000-TL moral compensation should be taken from the defendant and given to the plaintiff, the verdict was appealed by the defendant’s attorney.
1- In accordance with the articles in the file, considering the evidence on which the decision is based and the reasons for necessity, since there was no error in the evaluation of the evidence, the defendant’s attorney requested the rejection of other appeals requests that fall outside the scope of the following paragraph.
2- a) Since the reasons shown for the claimant having suffered moral damage were not considered sufficient for the acceptance of the claim for moral compensation, it was not considered correct to rule on moral compensation by the court.
b) If the enforcement proceedings that force the plaintiff to file a lawsuit against the debtor are unfair and malicious, the FIRST. 72/5. in accordance with the article, unfair and malicious follow-up compensation is ruled in favor of the debtor upon the creditor’s request. When this explained issue is taken into consideration, the fairness status on the date of execution follow-up is taken into account in determining the compensation. It is not true that this issue has not been observed by the court …” (a) the reason stated in paragraph (b) was overturned by a majority of votes for the reason stated in paragraph and the return of the file to the place of retrial was filed by the court on the grounds that it was resisted in the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision to resist was appealed in the examination conducted by the General Assembly of Law, and the document in the file was read, the following issue was discussed:
The case relates to a claim for non-pecuniary compensation due to improper detection and wrongful foreclosure.
The plaintiff’s lawyer initiated an external enforcement proceedings against the defendant’s client for paying the debt on 15.04.2011, and although the signed document was communicated to the defendant by continuing malicious enforcement proceedings, the plaintiff claimed that he had the right to foreclose on the house, that he had stored abortions and some household items, that the foreclosure process performed by the defendant was a tort, that the plaintiff was a source of shame to his family, that his honor was damaged against his environment, after determining that the plaintiff was not delayed due to the enforcement proceedings, he requested and sued for a decision to receive 40% compensation from the defendant and 5,000.00 TL moral compensation for wrongful foreclosure.
Paying paying the amount of TL 4.000,00, the defendant’s attorney stated that after initiating the enforcement proceedings, his client made a payment of TL 4.000,00, then the client’s signature was found on the document containing the statement that the debt was fully paid, his client, who realized this situation that day, requested the collection of up to TL 4.000,00, signed the document in his own handwriting, but this amount was collected by adding the phrase “TL 14.000,00″ to this document, but even this debt amount, that the file is not more than the amount of the debt at this stage, stating that paying the receivable subject to the lawsuit is contrary to the nature of life, he requested that the lawsuit be dismissed.
Paying paid the debt of the follow-up file as of the date of issue of the document dated 15.04.2011, the Local Court found that there was no evidence of forgery in the document submitted by the plaintiff and the defendant accepted the signature, the enforcement proceedings continued despite the payment, and the defendant’s house was foreclosed due to the defendant’s malicious pursuit,
Therefore the Enforcement and Bankruptcy Code (IIK) 72/5 provision will be applied. In accordance with the article, although the compensation conditions have been established, the file debt has been paid again, the plaintiff’s residence has been foreclosed and household items have been preserved, and collection has been resumed from a third party who is the bailiff, and on the grounds that the plaintiff’s reputation in the social and business environment has been damaged, the defendant has not owed the execution follow-up file as of 15.04.2011, it has been decided to collect 40% of the 4,400.00 TL compensation, and 5,000.00 TL moral compensation from the defendant.
The decision was appealed by the defendant’s attorney and overturned by the Special Administration on the grounds set out in the title deed section above.
Paying paid the debt and confiscating some household items, the plaintiff’s personal rights were damaged due to the foreclosure of the debtor’s residence and the confiscation of some household items, in this case the first 72/5, the unjust foreclosure is a tort and requires moral compensation, in the concrete case, the file debt was paid, but the prosecution continues, therefore, the reason that forces the plaintiff to file a lawsuit for moral compensation is the payment of the debt and the foreclosure of the plaintiff’s residence. the first paragraph of the provision of the article was resisted on the grounds that the compensation conditions in the article were also fulfilled. The decision to resist,
the appeal has been filed by the defendant’s attorney.
Dispute arising from resisting the General Assembly of Law: 72/5 of the Enforcement and Bankruptcy Code. in accordance with the article, provided that moral compensation is paid in favor of the plaintiff in the concrete case due to unfair foreclosure. it is collected at the points where the compensation conditions contained in the article are established.
It is useful to evaluate the dispute issues separately.
I-In terms of the objections of the defendant’s attorney demanding moral compensation;
It should be noted immediately that the Turkish Civil Code (TMK) No. 4721 recognizes natural and legal persons as persons. The legal order, which allows people to have rights and borrow money, has also provided them with the opportunity to protect their personalities. Value is protected to the extent of a person’s physical existence, personal values (life, body, physical and mental health) and place in society, as well as the effectiveness of external values (such as honor, honor, honor, economic, freedom of movement, name, honor and privacy of private life), in short, it is organized to cover all the values of a person (HGK dated 22.01.2016 and 2014/4-213 E., 2016/70 K .).
In this context, the right to personality is the absolute right of a person, including the concept of a person, to the material and spiritual personal values that he has due to being a person, that he considers worthy of protection with the right and competence of action and the legal order.
The right to personality is one of the fundamental rights and freedoms protected in the Constitution. Protecting and respecting the right to personality, which is considered one of the fundamental rights, is a constitutional obligation for both state bodies and individuals. Personal rights are under constitutional protection and protected by the provisions of the Turkish Criminal Code.
The basic regulation on the protection of personal rights in the field of private law is 23 and 24 of the TMK. it is included in the articles. Another regulation on the subject is 58 of the Turkish Code of Obligations numbered 6098 (TCO). is the substance. (see Law of Obligations No. 818 (BK) 49. article) and the personal right of the person who was attacked is regulated by a request for moral compensation. According to the generally accepted opinion, the rights of personality
a moral compensation lawsuit, which is one of the lawsuits that can be filed for protection, is a lawsuit filed in response to a decrease in the values of a person who suffered damage against his will, or in order to relieve the pain, anguish and suffering of a person whose personal right has been unlawfully attacked.
As a matter of fact, 49/1 of BC No. 818. 58/1 of the Turkish Commercial Code numbered 6098, which contains a parallel regulation to the article. article; “A person who has suffered damage as a result of damage to his/her right to personality may request paying a certain amount of money under the name of moral compensation in exchange for the moral damage he / she has suffered.” it contains the judgment.
As it can be seen, the basis of the claim for moral compensation lies in a wrongful act, and the person who is harmed due to the violation of his/her right to personality is 58 of the TCC. it is the subject of its substance. According to the article, he can claim moral compensation for the damage he has suffered.
In the meantime, the unjustified Decriminalization process is also an unfair process, and the person whose personal right has been damaged may request moral compensation.
As for whether there is an unfair foreclosure in the concrete case; the creditor (defendant) has started enforcement proceedings against the debtor (plaintiff) for the collection of the debt with a total value of 6.854, 00 TL for foreclosure on bond-based negotiable instruments dated 30.01.2007 dated 6.000,00 TL dated 28.03.2007 dated 3.05.2007 dated 01.03.2011 dated 05.02.2011 dated pay order, the debtor has appealed to Pharisee,
And since it was decided to reject the objection on the promissory note because all kinds of objections and complaints must be filed with the court, in addition, the creditor’s lawyer filed a foreclosure request for the first time on 06.05.2011, paying paid debts for the second time on 10.05.2011, it is understood that the debtor went to foreclosure at his home address, the debtor was not accepted by his lawyer, some household items were stored and put up for sale, when the sale could not be made, a total of four more times the home address was foreclosed on various dates, the bailiff did not fulfill the order to pay, and the collection was continued from him.
However, according to the document dated 15.04.2011 available in the file, all the debts of the follow-up file before the foreclosure date were paid by the plaintiff, except for the defendant. Furthermore, there is no dispute between the Special Chamber and the local court regarding the fact that the signature on the Decal Decal belongs to the defendant creditor. In this case, the foreclosure and preservation process performed by the defendant, who collects all of his receivables from outside, by continuing the enforcement proceedings without notifying the enforcement file, is an unfair foreclosure. The reputation of the plaintiff has been shaken due to unfair foreclosure, personal rights have been attacked.
In this case, the decision to appeal the defendant’s liability for the moral damage suffered by the plaintiff due to unfair foreclosure and precautionary foreclosure proceedings is in place.
However, since there has been no review of the amount of compensation by the Special Department, the file must be sent to the Special Department for the examination of objections related to this issue.
II-Article 72/5 of the Enforcement and Bankruptcy Code. as for the compensation cases decided in accordance with the article;
As it is known, the case that a person (debtor) who is likely to be subject to enforcement proceedings due to a debt that does not actually exist or an invalid legal relationship, or who has been subject to enforcement proceedings, will file in order to prove that he does not actually owe money, is called a negative determination case (HGK 22.01.2016 day and 2014/19-674 E., 2016/76 K .; 23.10.2015 days and 2014/19-118 E., 2015/2357 K.).
2004 No. 72 of the IIK. the article constitutes the basis of the defect detection case. it constitutes the basis.
The 72nd edition of the IIK entitled “Fake detection and investigation cases”. the essence of the substance;
“debtor may file a misdemeanor lawsuit to prove that the debtor was not present during or before the execution proceedings.
The court examining the negative detection case that is subject to enforcement proceedings may issue an injunction to stop enforcement proceedings in exchange for a guarantee that will show at least fifteen percent of the amount that you will receive upon request.
A decision cannot be made to stop the prosecution through an injunction in a misdemeanor case filed after the enforcement proceedings. However, the debtor may request the court by means of an injunction not to give the money in the enforcement guarantee to the creditor in exchange for a guarantee of not less than fifteen percent, which he will show and receive to cover the losses that will arise without delay.
If the case is concluded in favor of the creditor, the injunction is lifted. If the provision in this regard becomes final, the creditor shall receive the damages arising from the late receipt of the receivable due to the injunction from the security shown. The damage suffered by the creditor shall be decided by ruling in the same case. In any case, this damage cannot be less than twenty percent.
If the case is decided in favor of the debtor, the pursuit stops immediately. When the decision is finalized, the execution shall be partially or completely returned in accordance with munderecat and also without the need for a judgment to be given. If it is understood that the transactions that force the debtor to file a defect lawsuit are unfair and malicious, at the debtor’s request, it is also decided to collect from the creditor the damage suffered by the debtor due to the lawsuit. The damage to be appreciated cannot be less than twenty percent of the amount you will receive as a result of unfair follow-up.
If the debtor has not taken an injunction in case of false detection and the debt has been paid, the case continues as an istirdat case.
Paying paid money that is not owed because he did not object to the follow-up or his objection was removed, the person may request the withdrawal of the money by applying to the court to the public provisions office within one year from the date of payment.
Negative detection and investigation cases can be filed in the local court of the enforcement directorate conducting the follow-up, as well as in the residential court of the defendant. The plaintiff is obliged to prove that the money should not be given alone in the istirdat case.” includes the arrangement.
In the last sentence of the fifth paragraph of the article, the compensation rate, which was previously forty percent, was determined on 02.07.2012 and was changed to twenty percent by Article 15 of the Law No. 6352.
As can be understood from this regulation, the purpose of the negative clearance case is to determine that the legal relationship or right does not actually exist.
Before becoming the subject of enforcement proceedings, it can be argued that the underlying legal relationship does not really exist, or it can also be argued after enforcement proceedings. In order for the debtor to file a negative clearance lawsuit before or after the enforcement proceedings, the debtor must have a legal interest in determining that he is not a debtor. There may be an interest worth protecting in determining that the debtor is not a debtor without waiting for the creditor to make a transaction. If such an interest is found, the debtor may file a lawsuit to determine that he is not a debtor before the enforcement proceedings. In addition, the enforcement follow-up parties
since it is not sufficient for the determination of the material relationship between the creditor and the Decider, it is possible to request the court to determine that the debtor is not a debtor even after the creditor has initiated the follow-up or after the completion of the follow-up.
For the settlement of the dispute, it would be appropriate to refer to the consequences of the acceptance of the vile detection case.
If the court finds the case justified as a result of the negative determination case, it decides to accept the case, that is, to determine that the plaintiff is not indebted. With the finalization of this decision, it is determined that the receivable requested by the creditor or subject to follow-up does not exist in terms of material law, and the dispute is finally resolved. If the case is concluded (accepted) in favor of the debtor, the subject of the case is the outcome of the enforcement proceedings and the FIRST. m. it is 72/5. the issue of compensation, which is regulated in the article and must be decided in favor of the debtor, comes to the agenda.
After the decision is made (without the need for finalization), the enforcement proceedings are stopped immediately, when it is finalized, the enforcement proceedings are canceled, and the plaintiff is relieved of the debt.
SECOND. md. 72/5. in the article, it is stipulated that if the enforcement proceedings requiring the debtor to file a defect detection lawsuit have been conducted unfairly and in bad faith, the damages suffered by the debtor due to the lawsuit will be decided to be collected from the creditor, not less than twenty percent of the follow-up receivable upon request.
However, there are some conditions for compensation to be decided in favor of the debtor who won the case in the defect detection case. First of all, since the creditor must have forced the debtor to file a defect detection lawsuit with the enforcement proceedings that he has carried out, there must be enforcement proceedings against the debtor. In this respect, if enforcement proceedings have not been conducted against the debtor, there will also be no compensation. In addition, the debtor must make a request in this regard during the defect detection case, as well as the creditor must be unfair and malicious in the enforcement proceedings that force the debtor to file a lawsuit.
The important issue here is not only that the creditor is unfair in the enforcement proceedings, but also that the transaction was made in bad faith in accordance with the explicit regulation in the article of the law. The creditor has no receivable at all, or the requested
although he does not have an amount of receivables, if he attempts enforcement proceedings, the unfairness of the transaction will be in question. The bad faith contained in the text of the article arises only if the creditor knows that it is unfair and tries to assert it in order to harm the debtor.
Paying paid attention to all these comments in the context of the concrete incident, the creditor (defendant) initiated enforcement proceedings on behalf of the debtor (plaintiff) on behalf of the debtor (defendant) on 30.01.2007 dated bond-based negotiable instrument on 28.03.2007 upon the order to pay the debtor by foreclosure, as a result of long investigations, the document dated 25.02.2011 dated 15.04.2011 was notified by the debtor and the debt was paid. As it can be seen, the defendant is actually a creditor and the receivables were paid after the execution proceedings.
For this reason, it cannot be said that the creditor is unfair and malicious in the enforcement proceedings initiated due to a debt that is not paid on its due date. However, due to the fact that the creditor continues the enforcement proceedings after paying the debt and the “unfairness and malfeasance” lawsuit has been filed after that, it has been discussed whether compensation will be decided if it takes place after the enforcement proceedings. m. 72/5. the article of the FIRST in favor of the plaintiff in a concrete case. m. 72/5. considering that the article here refers to “follow-up”[u] and the fairness status [/u] on the date of the follow-up is based, it has been accepted by the majority of the Board that the compensation conditions in the article are not formed.
During the negotiations held at the General Assembly of the Law, 72/5 of the OIK. it is not true that the fact that the negative determination of the opening of the lawsuit in the article is an unfair and malicious search that forces the debtor to “pursue”, the execution of the execution process is unfair and therefore not determined only by the moment of commencement of the execution proceedings is malicious intent,
And that the negative determination and execution of the execution proceedings before the opening of the lawsuit may lead the creditor to initiate an unfair and malicious pursuit, in fact, in a concrete case against the creditor, in return for paying the debt, all written documents continue to be followed unfairly by refusing to report the status of the tracking file, the debtor foreclosed on his house, also tried to collect from the bailiff and forced the debtor to file a lawsuit by detecting a defect in his hand, this unfair attitude is 72/5. According to the article, the opinion that the decision of the local court should be upheld in terms of compensation decided in favor of the debtor was put forward, but this opinion was not accepted for the reasons explained above.
In this respect, the decision on the abolition of the Private Office abolished by the General Assembly of the Decree having the Force of Law 2. in accordance with the article, resisting the previous decision is not in accordance with the procedure and the law, and paragraph (b) of the article must be complied with.
Then the decision to resist in this direction should be abandoned.
CONCLUSION:
1- For the reasons explained in paragraph (I) above, it was deemed appropriate to reject and examine the objections made by the defendant’s attorney against the amount of moral compensation in the file. 19. It was decided unanimously to send it to the law firm.
2-The defendant’s attorney’s resistance to the acceptance of the appeal for the reasons specified in paragraph (II) above and the decision to overturn the decision of the Special Chamber, 2. provisional 3 of the Civil Procedure Law No. 6100. for the reasons stated in subparagraph (b) of article 1086, it has started to be applied in accordance with Article 429 of the Civil Procedure Law. According to Article 440 of the same Law, if an appeal advance is requested, it is returned to the depositor. In accordance with the article, the decision was taken by a majority of votes at the second meeting held on 25.04.2018, and the way to correct the decision is open within fifteen days from the notification of the decision.
VOTE AGAINST
The case relates to the case of determination that the debt has not been paid due to follow-up.
Paid pay compensation At the end of the trial conducted by the court; After the acceptance of the case and the payment of the entire debt, it was decided to pay compensation to the defendant creditor who continued the enforcement proceedings against him on the bet that the creditor had bad faith.
A person who declares that he has a document in his possession can follow the document by obtaining an order from the court, as well as by applying directly to the relevant enforcement office to obtain a receipt.
However, if the receivable is the subject of enforcement proceedings in the first place, the subsequent appeal may be cancelled or
pays October 20th additional compensation, not less than 20%, to the creditor if the debtor objects to the follow-up even though he knows that he is a creditor and starts the follow-up unnecessarily even though he knows that he is not a creditor, if it is reflected in the court in the form of a negative determination case. Compensation in concrete dispute,
The SECOND is 72/5. it is related to the compensation for the evil regulated in the article. In the relevant article, “…if it is understood that the transactions that force the debtor to file a defect lawsuit are unfair and malicious, at his request, it is also decided to collect from the creditor the damage suffered by the debtor due to the lawsuit” The provision is included.
It is possible to summarize the concept of “bad faith” contained in the text of the article as follows: despite a clear document and information that would make it unfair to conduct enforcement proceedings, the creditor starts or continues to follow up by taking an attitude in the opposite direction.
However, it is necessary to examine which stage of the “follow-up” corresponds to the bad faith phenomenon that will be disclosed to the creditor here. In other words, unfair and malicious “follow-up order” is a factor that should be determined from the date of opening the case, and in the ongoing process, “negative liquidation” will mean total attitude and behavior until the date of opening the case, issues need to be clarified.