T.C.
SUPREME
2. Law Department Article No:2013/16048
Decision No: 2013/29319
Date of Decision : 11.12.2013
DIVORCE PROCEEDINGS – THE DURATION OF THE ANSWERS AND EVIDENCE
UNREPORTED – REPORTED PRIOR TO THE PRELIMINARY REVIEW HEARING
THE NEED TO LISTEN TO WITNESSES – THE VERDICT WITH INCOMPLETE EXAMINATION
NON-COMPLIANCE OF THE FACILITY – VIOLATION OF THE PROVISION
SUMMARY: The respondent who did not provide answers and evidence during the time period is based on the plaintiff’s petition for action
since he will have denied the cases, the witnesses he reported before the preliminary examination hearing will also have
while it should be listened to, with incomplete examination, it is contrary to the rules, procedures and the law to disrupt
this is required.
(6100 pp. K. m. 140, 187)
Case: The Deci-sion of the case between the parties is finally decided by the local court,
the judgment, the date and number of which are shown above, is appealed by the defendant, the documents are read and
it was discussed and considered as necessary:
Verdict: The case was filed on 27.07.2012. Conducting a pre-trial examination by the court and
it was decided to send a warning to the defendant to inform him of his evidence, and this warning was communicated to the parties
has been. The plaintiff presented the list of evidence before the preliminary examination hearing, and the defendant replied
after passing it, he submitted a list of answers and evidence, a preliminary examination hearing was held, and the parties
it has been determined that they do not agree. Witnesses reported by the defendant, not reported during
it has been decided to refuse the request to be heard on the grounds. Without a preliminary examination hearing,
provide the parties with documentary evidence that they have shown in their petition, or
make statements about their location (HMK md. 140/5) in this sense, the granting of time for
it has no consequences. On the other hand, the evidence is shown for the proof of contentious cases (HMK md. 187/1). Before
issues that the parties agreed and could not agree on without a review hearing
it is also not expected that the parties will provide a list of witnesses until it is determined.
For this reason, the respondent who did not provide answers and evidence during the period is based on the plaintiff’s petition for the case
since he will have denied the cases, this is also the witnesses he reported before the preliminary examination hearing
while it should be listened to in accordance with the direction, it is contrary to the rules, procedures and laws with incomplete examination, and to disrupt
this is required.
Conclusion: If the appealed decision is OVERTURNED for the reason shown above, according to the reason for the violation
that there is no place at this stage for the examination of other appeals, the appellant of the advance fee of the appeal
within 15 days from the date of notification of this decision, the way to correct the decision will be open for its return,
it was decided by majority vote on 11.12.2013.
VOTE AGAINST
The lawsuit was filed on 27.07.2012; the defendant filed a petition with the name of the response petition after the legal period
he gave a list of evidence before the preliminary examination hearing. After the period
since it has been granted; the petition for an answer to this petition (HMK. md. 129, 317) as the qualification cannot be given, in the law
at the stage of mutual submission of petitions (HMK. md. 126-136) a specified that can be used
part of the rights (HMK. md. 116,141) it is also unacceptable that it can be put forward with this petition. Within the period
the defendant, who has not filed a response petition, stated that the cases put forward by the plaintiff in the lawsuit petition (HMK.
md.119/1-e) is considered to be a complete denial (HMK md. 128). Mutual submission of petitions
with the completion of the stage (HMK.md.126-136), the preliminary examination stage (HMK.md , 137-142)
it will be passed. If an answer request has not been submitted within the time limit, the prescribed time limit for the answer (HMK.md.127)
by the end of the process, the stage of filing petitions will be completed and the preliminary examination stage will now be completed
there will be no obstacle to its passage. In a duly conducted preliminary examination, the judge; in particular, the parties
within the framework of their claims and defenses, they agree and disagree by determining the dispute
he will identify his subjects (HMK md.140/1,2). The defendant, who did not respond, did not defend any
he could not have based it on the case, and only the plaintiff’s basis denied all of the cases
since it will fall into the situation; in a divorce case in this situation, the subject of dispute is now the plaintiff’s
there will be cases when it withstands. In such a case; the defendant’s defense may also depend on this, but
with the activity of proving that the cases on which the plaintiff is based are not real (refutation=counter-proof),
it will be limited. As already described above, the subject of the dispute, according to which it will be determined at the preliminary examination;
the defendant who does not answer and has not given evidence before; only limited to the denial of the case;
until the end of the review stage and, depending on the situation, during the investigation stage (HMK. md. 143-183) also
it is necessary to recognize that he has the right to give evidence and demand that they be collected. To this
the defendant, who has fallen into the situation described in the response; the presence of a different case for the plaintiff;
he will not be able to last and will not be able to prove it.
In this case, according to the fact that the defendant reported his evidence before the preliminary examination stage;
in order to be evaluated within the framework, the evidence shown is duly collected and all the evidence is combined
by evaluating; at the discretion of the parties’ defect distribution and degree, the parties’ divorce feris
while the relevant requests should be decided, the decision on these issues should be made in writing with an incomplete review
its issuance is contrary to procedure and law. That the appealed judgment should be overturned in the direction I have explained
i have faith. In this regard; although we agree with the conclusion of the precious majority, we do not
he partially disagrees with his reasoning, and I think that the provision should be overturned on the grounds that I have explained.
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