TC SUPREME
8.Law Office
Originally: 2017/16734
The Verdict: 2018/252
Decision Date: 11.01.2018
CITY CONNECTION DENIAL CASE – THE ONE-YEAR PERIOD OF THE RIGHT DISCOUNT WILL START FROM THE DATE OF STUDY – SUSPICION CANNOT BE CONSIDERED SUFFICIENT FROM THE POINT OF VIEW OF EDUCATION – IT MUST BE ACCEPTED THAT THE CASE WAS FILED WITHIN THE TIME LIMIT – VIOLATION OF THE PROVISION
SUMMARY: The case relates to the request for the rejection of the genealogical link. Considering that the plaintiff wants to determine whether the child is from him or not and to determine the reason, but there has been no previous examination in this direction; it is understood that the relevant article regulating the period of lowering the right in terms of the denial of the genealogical link case does not contain the phenomenon of “learning” about the nature of the beginning of the period, that is, the plaintiff did not conduct a DNA test type examination to eliminate the doubt that the child is not himself, the doubt does not go one step beyond scientific accuracy, that is, it exists as a doubt; it is not appropriate for the court to dismiss the case because the case has passed the reduction period.
(4721 Pp. K. m. 285, 286, 289) (6100 Pp. K. It’s late. m. 3) (1086 PK m. 428, 440) (ANY. MAH. 25.06.2009 T. 2008/30 E. 2009/96 K.)
Case: At the end of the trial between the parties in the case described above, it was decided to dismiss the case by the Court and upon the plaintiff’s appeal of the verdict, the decision was reviewed and it was decided that the case was Decried as necessary.
Decision: In the petition for the case, it was requested that the defendant … and the healthy child … be decided to reject the Decalogue by stating that they are not the plaintiff’s children; the court decided to dismiss the case by stating that the one-year penalty reduction period stipulated for the rejection of soy allegiance had passed.
The case is filed under Article 286 of the Turkish Civil Code No. 4721. the article and its sequel are related to the rejection of the robbery case filed by the father against the child and the mother.
Blood connection in a broad sense is a blood connection with a person’s upper lineage; blood connection in a narrow sense is a person’s biological connection only with his parents. A paternal bond that derives from biological (genetic) means with a person (child), as a natural (biological) bond between people, Decrees of law, Decrees some conditions, as a result of the child’s attachment to his legal parents, if a legal relationship is established between mother and child, it is called legal paternity (legal relationship). Accordingly, honor is defined as the natural and/or legal bond between a person and his or her parents. Dec.
According to the Turkish Civil Code No. 4721, it is possible to establish the legal lineage between the child and the mother by birth, and the legal lineage between the child and the father by marriage to the mother, recognition, Dec Dec in paternity proceedings or adoption.
Being born from a marriage between father and child is related to the Decencies of fatherhood (TMK md. according to 285), the elimination of the legally established kinship relationship can only be brought to the agenda by the rejection of kinship. As a result of the success of the Decriminalization case and the disappearance of the kinship between the child and his father, the child becomes a child who does not have kinship from the father’s side. Constitutional Court dated 25.06.2009, 2008/30 E. and 2009/96 K. as stated in decision No. 1, the right of a person to reject a child whose genetic and biological origin does not belong to him is one of his most fundamental rights.
286 of the Turkish Civil Code No. 4721. according to the article, the husband can refute the presumption of paternity by filing a rejection lawsuit against the child and the mother; 289. in the article, it is stipulated that the case filed with the allegation that the husband is not the father or that the mother conceived while having sexual intercourse with another man and the birth must be filed within one year from the date of the information that it exists, if the reason for the delay disappears, the one-year period will begin from the moment the threats disappear.
In the Nesep rejection case, it should be emphasized whether the doubt is sufficient in terms of learning at the point where the “learning” that decides the merits of the case takes place, and whether the case was opened within the reduced period of merit. In the settled Court of Cassation applications, paternity reports obtained outside the case are taken into account in particular, it is assumed that the trial period, which is the reduced period of rights, begins from the date of learning, that is, the reduced period of rights will begin as soon as the learning takes place with a non-judicial paternity test. Therefore, the suspicion that the child is not himself will not be considered sufficient in terms of learning.
In the concrete case, the plaintiff father … and the defendant mother Ilknur were married on 06.06.2003 and divorced on 11.05.2012, born on 05.07.2005 shortly before the divorce decision was made, during the defendant’s defense the child was not the father himself, the plaintiff repeated this to determine whether the child was from him when the divorce was filed and to determine the reason, but when it was assessed that there had not been a previous examination in this direction; in order to eliminate the plaintiff’s suspicion that the child is not his own, a
DNA test-type examination was not conducted, and the suspicion has not reached a stage to reach scientific accuracy, that is, it exists as a suspicion, 11 of the Law No. 289 regulating the period of just cause for the case of denial of offspring. it is understood that the phenomenon of “learning”, which is the beginning of the period contained in the article, does not occur; The court ruled that the case should be entered into the merits of the case by accepting that it was filed within the time limit, collecting the relevant evidence of the parties to the claim, determining the cold case by conducting the necessary DNA examination and deciding according to the result, it was not considered correct to dismiss the case on the grounds of unfair time.
Conclusion: With the acceptance of the plaintiff’s attorney’s appeal request, Provisional 3 of the CCP numbered 6100 for the reasons explained above. it has been decided to overturn the provision of the article. temporary 428 of HUMK No. 1086. in accordance with Article 440 / I of the Code, the parties may request a correction of the decision within 15 days from the notification of the Supreme Court, if requested, they may request that the advance fee be returned to the plaintiff, it was unanimously decided to OVERTURN it in accordance with article 440 / I of the CODE on 11.01.2018.