TC SUPREME
Legal Department Article No: 2018/2790
Decision No: 2018/5318
Decision Date: 05.28.2018
SUPREME COURT DECISION
:
In the appeal filed by the creditor before the Enforcement Court,
within the time limit specified in the court decision dated and numbered above,
upon the request of the relevant department, the file related to this case was sent from the place of incident to the department and to the file,
the report prepared by the examining judge was heard, and all documents in the file
were read and examined, after which the necessity of the case was discussed and evaluated:
The debtor’s representative stated that enforcement proceedings had been initiated against his client and that the enforcement proceedings in question had not yet been finalized, that claims for moral damages were directed at personal rights before the enforcement proceedings were finalized
and that this could not be done, requesting the court to decide on the cancellation of the enforcement proceedings.
The family
and the request were accepted on the grounds that decisions relating to personal law could not be applied before they were finalized, and
it was seen that a decision was made to cancel the enforcement proceedings.
Pursuant to Provisional Article 3 of the Civil Procedure Law No. 6100, the appeal
must be made in accordance with Article 443/1 of the Code of Civil Procedure (HUMK). According to this article, an appeal does not suspend the enforcement of the decision. Therefore, as a rule, the fact that your decision is not final does not prevent its enforcement. Exceptions to this rule are also regulated in the law
Under the Family and Personal Law Code (HUMK.443/4 m.), enforcement is not possible before finalization. The provisions mentioned in the article
are found in the “Personal Law” and “Family Law” books of the Civil Code, but
they do not cover all subjects, but contain legal provisions directly related to the individual’s personal or family structure,
and provisions regarding the nature of these changes (e.g.,
name, surname, age correction, custody decision, paternity suit, birth correction, divorce and divorce-related
provisions) are included.
Furthermore, instructions regarding the handover of the child and the establishment of a personal relationship with the child
cannot be enforced until they become final (Enforcement and Bankruptcy Law Handbook, pages 923-924).
The concrete case on which the enforcement proceedings are based is the decision of the 2nd Court of First Instance No. 548/2014,
decision No. 2014/1333, and decree No. 6098 dated 17/12/2014 concerning death and bodily injury.
Pursuant to Article 56 of the Code of Obligations, it concerns the moral damages envisaged in the said article and, as it is not among those mentioned above,
there is no need to cancel it in order for it to be pursued.
In this case, the court should decide to reject the complaint; if the complaint is accepted with written reasons,
it is wrong to decide to cancel the enforcement.
CONCLUSION: The acceptance of the creditor’s objections and the court’s decision for the reasons stated above
(pursuant to Article 366 of the Code of Civil Procedure and Article 428 of the Code of Civil Procedure),
a unanimous decision was made on 05/28/2018 regarding the request for the return of the previously collected fee for the return of the case, and the decision may be corrected within 10 days of its notification.