15. Legal Department 2020/2937 E. , 2021/864 K.
“Text Of Jurisprudence”
COURT :… District Court of Justice …. law office
At the end of the trial between the parties … the case was determined, the file was examined, discussed and considered as necessary upon appeal by the plaintiff’s attorney within the time limit of the decision to dismiss the case for the reasons written in the dec.
– Decision –
The deputy plaintiff requested that a contract of works be concluded with the decommissioned contractor, that some works be transferred to the defendant by signing a contract between the defendant subcontractor and the contractor, that his client has suffered great damage due to the defendant’s unjustified termination of the contract, and that his client is not indebted to the defendant due to the termination of the contract to which his client is not a party.
5 /A of the TCC No. 6102 of the court of first instance. article 2 of Article 18/ A of the Law No. 6325. in accordance with the provisions of paragraph 115/2 of the Code of civil Procedure, it was decided to dismiss the case due to the absence of a case requirement, on the grounds that applying to a mediator before filing a case in determination cases is a case requirement.
An appeal was filed against the decision by the deputy plaintiff … the District Court of Justice …. 20 of the Law No. 7155 of the Legal Department. Article 5 TTK. in accordance with Article 5 / A added to the article … it has been decided to reject the application for appeal on the basis that it is a condition of the case to apply to the mediator in determination cases.
The decision was appealed by the deputy plaintiff.
The case is related to the determination that the work that is not a party is not owed due to the termination of the contract.
A claim for legal protection filed with a court is qualified as a lawsuit.
… case No. 6100 of HMK 106. it is expressed in the article. In addition, IIK 72. in its article, a special type of determination case is organized from the point of view of enforcement law.
HMK 106. article through the determination case, the court may be requested to determine the existence or absence of a right or legal relationship, or whether a document is a fake.
article 72 of the Turkish Commercial Code No. 2004. article ” The debtor may file a claim for determination … to prove that the debtor was not present before or during the enforcement proceedings.”
article 18 / A of the Law No. 6325 on Civil Disputes … “(1) If the application to a mediator has been accepted as a condition of litigation in the relevant laws … the following provisions apply to its duration.”
Article 5/A of the TCC “Article 4 of this law. it is a condition of the lawsuit that the mediator has been contacted before the lawsuit is filed about claims for receivables and compensation, the subject of which is the payment of a certain amount of money from commercial lawsuits specified in the article and other laws.” Contains its provisions.
… In the book “The Requirement of Litigation in Commercial Disputes …” published by the General Directorate of Legal Affairs … Department of the Ministry of Civil Affairs … the opinion is given that mediation in detection and investigation cases is the requirement of litigation.
… detection case HMK 106. and IIK 72. it is a special type of detection case regulated in the article. In these cases, it is requested to determine that some money is not owed in these cases, and as a result of the cases, a negative provision is established regarding the part that is not owed. Although this provision constitutes a final provision between the parties, it is a decisionmaking provision that does not allow for performance. Article 5/ A of the TCC states that claims for payment of a sum of money, receivables and compensation are subject to a mediator before a lawsuit is filed. Both HMK 106 and HR 72. as stated above, the determination cases determined in the article are cases for negative determination that do not contain a performance provision. In this respect, the reason for “obtaining the receivable as soon as possible”, which the legislator intends in Article 5/ A of the TCC … cannot be a justification for determination cases. Indeed, the doctrine states that … detection cases are not subject to mediation, … forcing the debtor to apply to the mediator in detection cases will mean depriving the mediator of the right to file a detection case before pursuing him, since the application will not stop the execution in force, and your measure cannot stop the pursuit by investing a 15% guarantee, dec is contrary to the freedom of search in this. (…:Prof. Dr…., Prof. …, Prof.Dr. …, Prof. Dr. … In Civil Disputes … 2. The edition Sh.189-191) (Prof. April March- April 2020 Sh.111 -141)
In addition, IIK 89 . 211 material and HMK et al. it is also explained that there is no possibility to go to a mediator in the determination cases filed in accordance with the articles.
In order for mediation to be a condition of litigation in accordance with Article 5 / A of the Turkish Commercial Code, (1) the subject of the case must be paid some money (2) this request must be put forward as receivable and compensation in the case. As explained above … it is understood that there are no conditions set out in the law in detection cases. If the legislator … wanted to subject detection cases to mandatory mediation, he would have made it clear. As explained above, it is not possible to take the determination cases within the scope of Article 5/A of IIK by comment.
In light of all these grounds … it should be concluded that contacting a mediator before filing a lawsuit in determination cases is not a condition of the lawsuit.
In the concrete case, the plaintiff has requested the determination that he is not indebted to the defendant due to the termination of a contract that he is not a party to, so he has filed a determination case. The court of first instance … has decided to dismiss the case due process on the grounds that the application to the mediator in the determination cases is a condition of the case, upon appeal of the decision … the District Court of Justice …. He essentially rejected the application to the Legal Department. As explained above … before filing a lawsuit in determination cases, it was necessary to decide whether the decision should be overturned for the benefit of the plaintiff, since the application to the mediator would not be considered a condition of the lawsuit.
CONCLUSION: For the reasons described above, with the acceptance of the plaintiff’s attorney’s request to appeal … 1. Regarding the VIOLATION of the decision of the Commercial Court of First Instance, the fundamental rejection of the application for appeal against the decision … the District Adiye …. It was decided by majority vote on 15.03.2021 that the decision of the Civil Department should be lifted, the file should be sent to the court of first instance for examination on the merits of the case in accordance with Article 373/1 of the HMK, a sample of the decision should be sent to the District Court of Justice, the advance fee paid should be returned to the appellant upon request.