The General Assembly of the Supreme Court of Law defined the procedural acquired right as follows. “A right arising in favor of one of the parties due to a procedural action taken by the court or the parties in a case, and therefore against the other, and which must be respected, is called a procedural vested right. For example, by complying with the court’s decision to overturn the Supreme Court, the right acquired in respect of the party in favor of the decision to overturn arises.
At the end of a court’s compliance with a decision to overturn issued by the Supreme Court, it has an obligation to conduct an examination and investigation for itself in the form shown in that decision and again make a decision in accordance with the legal principles set out in that decision. In this regard, the fact that the subsequent decision of the court is contrary to the principles set out in the decision to overturn is the reason for the overturning, as it is not procedural.
A decision to overturn means that the case has been brought in accordance with the procedure and the law. After compliance with the violation, the decision to contradict it means that it is removed from compliance with the procedure and the law, which clearly contradicts the public order as a result. Accordingly, the court that has complied with the Supreme Court’s decision to overturn is bound by this decision to comply. He cannot then make a decision to resist by returning from this decision to comply; he must make an examination in the form shown in the decision to violate it or make a new provision in the form shown.
In order for the acquired procedural right to have legal consequences, it is necessary to mention the existence of a right that was born in favor of one of the parties and must be complied with in a case by a procedural act that was Decisively performed by either the parties or the court of Cassation and is not considered among the exceptions.”
GENERAL ASSEMBLY OF THE SUPREME COURT OF LAW 2017/2096 E. , 2017/895 K.
“text of jurisprudence”
TRIBUNAL : Employment Tribunal
At the end of the trial between the parties for the “Decommissioning of labor” case, Bursa 1. 31.03.2011 day and 2009/1182 E, which were issued by the Labor Court on the acceptance of the case., 2011/138 K. upon request of the defendant’s deputy to examine the decision on appeal, the Court of Cassation 9. The day of 03.10.2013 and the day of 2011/30656 E of the Legal Department., 2013/24941 K. by his numbered decision,
“…A) Summary of the Plaintiff’s Request:
The plaintiff, the defendant, while working as desired to be given the job in the workplace forklifci track striping business wrongful termination of employment when the employer did not accept a material change to the terms upon which the last day of religious holidays and working 12 hours a day in 2 shifts, 6 days a week including public holidays, also under the same conditions months, 2 weeks vacation you work, the more work a fee, week, resort fees, and payment of the holiday with that statement in general, severance pay, notice pay, overtime pay, the week holiday fee has been requested to be collected with the interest of the 1300 TL receivable, including the national holiday general holiday fee.
B) Summary of the Respondent’s Response:
The defendant in the workplace, the coating of metal surfaces, made of zinc plated coating and cataphoresis of the section that is located by the plaintiff in the section cataphoresis love the task of marshaling a rating of the performance of the work because it is not the task of marshaling from the date of 04.11.2009 love ( same task ) reported that the zinc coating will do in the section, but as business conditions change in the status of the plaintiff does not accept the task and evaluate and agirlastirma 04.11.2009 from the date of your employment by the dissolution of not coming to work, and your new position in the same job would make the same wage, he requested the dismissal of the case by declaring that there was no aggravation involved, that he had never worked as a forklift truck driver, that he had left his workplace by taking all his rights and releasing the defendant.
C) Summary of the Decision of the Local Court:
Based on the evidence collected by the court and the expert report, was adopted when she was working as zinc coating, which is fixed at FILE scope forkliftci and labour of love in the section formed by a substantial change in the working conditions of workers employed in the imposition of the claimant upon accepting this change of the contract by the employer without just cause terminated , overtime, holidays and Week holidays and public holidays, the witness statement of work that we’ve cleared up with the scope of the case by stating that it is not to the reputation which is contradictory to the acceptance acquaintance was decided.
D) Appeal:
The defendant appealed the decision.
E) Justification:
1-According to the articles in the file, the evidence collected and the legal reasons on which the decision is based, the defendant’s appeals that fall outside the scope of the following paragraph are not in place.
2-There is a dispute between the parties regarding the validity of the Hebrew Decipherment.
Dec Issue of invalidity in respect of release agreements concluded between the employee and the employer prior to the entry into force of the Turkish Code of Obligations for the termination of the employer’s debts should be evaluated within the following principles:
a)-Within the framework of the well-established case law of our department, the release agreements issued while the business relationship is ongoing are invalid. The employee is completely dependent on the employer during this period and, despite the provisions of the labor guarantee, it is possible that he will turn to signing a release agreement against his will in order to ensure the continuation of the employment relationship or to obtain some labor receivables as soon as possible, and this is the practice of our Department that has gained determination (Supreme Court 9.HD. 15.10.2010 day, 2008/41165 E., 2010/29240 K.).
b)-Hebrew cannot be valued if it does not contain a date and it is not clear from its content that it was edited after the date of termination (Supreme Court 9.HD. 5.11.2010 day, 2008/37441 E, 2010/31943 K).
c)-Whether Hebrew is valid The Law No. 818 on Obligations in force until 01.07.2012 regulating willful mischief 23-31. it should also be evaluated in terms of its substances. If one of the parties makes a fundamental mistake during the execution of the release agreement and encounters deception or intimidation by the other party or a third party, the release will cannot be mentioned.
On the other hand, the excessive use (gabin) criterion mentioned in Article 21 of the Code of Obligations No. 818 should also be evaluated at the point of validity of release agreements.
Cases of violation of the will in Hebrew must be brought forward within the one-year period of reduction of rights provided for in Article 31 of the Code of Obligations No. 818 (Supreme Court 9.HD. 26.10.2010 day, 2009/27121 E, 2010/30468 K). However, the period of one year does not work during the continuation of the business relationship in terms of Hebrew words of a printed nature received when entering into business.
d)-The discharge agreement is a way to terminate a debt whose existence is undisputed, but it is impossible to terminate debts whose existence is doubtful or disputed through a release. Therefore, it is inconceivable that a debt that the employee is not claimed to be entitled to will be the subject of submission. It should be recognized that the release agreements that contradict the defense and other records of the employer are invalid (Supreme Court 9.HD. 4.11.2010 day 2008/37372 E, 2010/31566 K).
e)-In the case of release agreements containing an amount, if the receivable is fully paid, the debt will be terminated by performance. However, in cases of partial payment, the presentation is not paid in the established case law of our Apartment, and it is accepted that the paid payment is subject to receipt (Supreme Court 9.HD 21.10.2010 day 2008/40992 E, 2010/39123 K.). The fact that the Hebrew containing the amount was taken while working does not eliminate the receipt effect (Supreme Court 9.HD. 24.6.2010 day 2008/33748 E, 2010/20389 K.).
f)-In the case of release agreements that do not contain amounts, the issue of validity should be carefully considered. A will corruption audit should be conducted and solutions should be sought regarding the validity of the Hebrew language according to the characteristics of the concrete event (Supreme Court 9.HD. 27.06.2008 day 2007/23861 E, 2008/17735 K.). In the Hebrew law, which is issued after the termination and in which the items of receivables are counted individually, the will of release must be considered valid unless the will is asserted and proven (Supreme Court HGK. 21.10.2009 day, 2009/396 E, 2009/441 K).
g)-Again, the fact that the employee gives a record of his/her passion that he/she reserves his/her legal rights in Hebrew indicates that there is no hebrew will (Supreme Court 9.HD. 4.11.2010 day 2008/40032 E, 2010/31666 K).
h)-In terms of labor receivables that are not included in the Hebrew, it cannot be said that the debt has expired. The existence of a conflict with the defense in terms of some of the labor receivables contained in the Hebrew does not completely invalidate the Hebrew. In terms of the parts that are not in conflict with the defense, the will of release should be valued (Supreme Court 9.HD. 24.6.2010 day, 2008/33597 E, 2010/20380 K). In another expression, the divisible effect of Hebrew can be mentioned in such cases. A Hebrew is considered to be a receipt provision in terms of some receivables, while some labor rights and receivables may be invalid due to contradiction. In terms of items that do not contradict the same Hebrew and do not contain amounts, the debt can be considered terminated by release.
The defense of Hebrew can be put forward at any stage of the trial by being an appeal that can eliminate the right (Supreme Court HGK. 27.1.2010 day 2009/9-586 E, 2010/31 K. ; Supreme Court 9.HD. 13.7.2010 day, 2008/33764 E, 2010/23201 K.).
In the concrete case, in the text of the Hebrew dated 9.11.2009, ” ….. i have received all my wages during the working period from the date I started working until today, all my social rights and wages for the week and general holidays … the rations I mentioned above, which I deserved at the time of my departure, in full … I will be released..”there is an arrangement in the form of “and there is an accrual of TL 214.64 in terms of overtime pay.
It was not evaluated by the court on the grounds that it was contradictory in terms of the scope of the Hebrew language. However, Hebrew does not contain an amount in terms of how much work it will take, and it does not contain an amount in terms of how much it will take for general holidays and weekdays, and there are no contradictions in terms of its scope. The amount paid should be deducted by accepting the receipt in Hebrew from the court that they will receive overwork, the amount should be deducted from the general vacation, and from the point of view that they will receive a week break, the debt should be considered to have ended by release and the rejection of the requests should be decided. It is wrong to make a decision in writing.
3- Although the plaintiff does not reserve his rights to the surplus in the lawsuit petition, it is wrong for the court to decide the requests by reserving his rights to the surplus …”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and turning the file back to its place.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
The case is related to the request for collection of labor receivables.
Defendant plaintiff attorney with major case of an employment contract by the employer without just cause of the client he been terminated, citing severance pay, work overtime, weekends and public holidays from the defendant requested the collection of receivables; additional surplus in the petition in case the principal of the rights on the stored inadvertently eclipse was forgotten, however, that the surplus from the rights on the petition that are stored by specifying the same from the defendant understood the decision to be given to the collection of receivables requested.
The defendant’s deputy stated that the plaintiff had terminated the employment contract by not coming to work by not accepting the change of duty made and asked that the case be decided to be dismissed.
The court decided to accept the case on the grounds that the change of duty made by the plaintiff’s employee is a fundamental change and that the termination made by the defendant employer is not based on a justified reason after the plaintiff has not accepted this duty, and that additional rights are reserved on the grounds that it will not be respected in a contradictory Hebrew.
The verdict was appealed by the defendant’s deputy and the decision was overturned by the Special Department for the reasons shown in the title section.
Notification related to the reversal of cause abide by the court as a general waiver of the payment amount to the rejection of unwritten holiday vacation week wage demands where the decision is made, the payment amount that would take more work is written from the direction where the legislature was offset by stating the law on civil procedure introduced by considering the demands on the rights of the plaintiff in the merged file more about the case has been decided upon the adoption of the partial previous one was the decision stand.
The decision to resist was appealed by the defendant’s deputy.
The dispute that comes before the General Assembly of Law by way of resistance is collected at the points whether the case filed without reserving the rights related to the surplus will be considered as a full case or a partial case, whether the additional case filed according to the result to be reached here and whether the balance receivables October be entitled to.
During the negotiations at the General Assembly of the Law, the issue of whether a decision can be made to resist after the court’s decision to overturn it was complied with before proceeding to the merits of the work was discussed as a preliminary question.
After the first decision of the court was overturned by the Special Chamber, the court decided to adjourn the trial on 27.01.2014 with the Decision9 of the Supreme Court. It was decided that the Legal Department ”complied with the decision to October/break the date and number written above”, and after receiving an additional report on the decision to break it and the requests in the merged file, the decision to resist the trial was continued.
In the justification of the decision and decide to resist the decision of partially observed were adhered to the cause of ruining the terms of this disclaimer, however, that the number 6100 against ruining the grounds of decision of 3) of Civil Procedure Law on the rights of the plaintiff introduced by the legislature in the merged file more about partial decided upon the adoption of the case by considering the demands that had been indicated.
The problem that arises here with regard to the “procedural law” is that after the parties’ statements have been received, the court has established an interim decision on “compliance with the Decisionto overturn”, but it is still not legally possible to make a decision on the contrary of this legal result.
As is known, the right that was born in favor of one of the parties due to a procedural action taken by the court or the parties in a case, and therefore against the other, and which must be respected, is called a procedural vested right.
For example, by complying with the court’s decision to overturn the Supreme Court, the right acquired in respect of the party in favor of the decision to overturn arises.
At the end of a court’s compliance with a decision to overturn issued by the Supreme Court, it has an obligation to conduct an examination and investigation for itself in the form shown in that decision and again make a decision in accordance with the legal principles set out in that decision. In this regard, the fact that the subsequent decision of the court is contrary to the principles set out in the decision to overturn is the reason for the overturning, as it is not procedural.
A decision to overturn means that the case has been brought in accordance with the procedure and the law. After compliance with the violation, the decision to contradict it means that it is removed from compliance with the procedure and the law, which clearly contradicts the public order as a result. Accordingly, the court that has complied with the Supreme Court’s decision to overturn is bound by this decision to comply. He cannot then make a decision to resist by returning from this decision to comply; he must make an examination in the form shown in the decision to violate it or make a new provision in the form shown.
The same principle was adopted by the General Assembly of the Supreme Court of Law on 05.02.2003 day and 2003/8-83 E., 2003/72 K.; 17.02.2010 day and 2010/9-71 E., 2010/87 K. it is also adopted in their numbered decisions.
As with many legal rules, there are exceptions to the phenomenon of “procedural acquired right” adopted by the case law of the Supreme Court, which has also been improved by the case law of the Supreme Court. In the face of a Decision to Merge a new Case Law after the court complies with the violation (09.05.1960 day and 21/9 YIBK) or the emergence of an effective new law in the past, the procedural right formed by complying with the Supreme Court’s decision to overturn will not be of legal value. If a provision of the law that must be applied in a similar way is decided to be annulled by the Constitutional Court before the decision is finalized, it can be decided not according to the procedural right, but according to the new situation that occurs after the decision of the Constitutional Court to annul (21.01.2004 days and 2004/10-44 e of the SSI)., 19 K.; 03.02.2010 day and 2010/4-40 E., 2010/54 K.).
In addition to these issues, there is also no mention of a procedural acquired right in matters related to public order, as well as in compliance with decisions on derogation based on duty, reduced period of rights, objection to final judgment, fees and material error (Kuru B.: Civil Procedure – C. V, 6. b Istanbul 2001, p 4738 et seq.).
In order for the acquired procedural right to have legal consequences, it is necessary to mention the existence of a right that was born in favor of one of the parties and must be complied with in a case by a procedural act that was Decisively performed by either the parties or the court of Cassation and is not considered among the exceptions.
Considering all these issues together; In a concrete case, the procedural right to the defendant’s benefit was established by the compliance of the local court with this decision upon the decision of the Supreme Court to Deconstruct the appeal of the defendant’s attorney. Since there are no exceptional circumstances here that will prevent the realization of the acquired right, it is no longer possible to resist the previous decision in due course. The principle of procedural vested rights is related to public order and must be taken into account spontaneously at the appeal stage.
For the reasons described, it is contrary to the procedure and law that the court has decided to resist, while the procedural acquired rights that occur by complying with the violation must be taken into account and the requirements for violating the provision must be met.
Therefore, the decision to resist must be overturned.
Conclusion: The decision of the defendant’s deputy to resist with the acceptance of appeals may be IMPAIRED due to the procedure for various reasons shown above, according to the reason for the violation of other appeals
it was decided unanimously on 03.05.2017 that there is no place for its examination for the time being, the decision is closed for correction.
You can read our articles and petition examples by clicking here.