General Assembly of the Law 2017/1243 E. , 2021/113 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
1. At the end of the trial between the parties for the case of “decommissioning and registration of land titles”, Bursa 6. The decision on the dismissal of the case issued by the Court of First Instance of the Supreme Court of Cassation on the appeal of the plaintiff’s deputy 1. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the deputy plaintiff.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. In the petition the plaintiff’s Attorney; your client Ardahan Posof District, lived in the village of Sutoluk and located in Bursa, the case raised money by selling the land plots for construction in 11 cattle each year sent to his brother, the defendant, to undertake the construction of and, when necessary, Yesil Bursa field or abandoned in favor of the municipality for making transactions 7. Journal number and date 24.03.2005 02777 noterligince held with his brother attorney representative, the defendant’s attorney misconduct after transferring real estate to the spouse on the deed 24.06.2008 on 22.12.2008 taken on their own by showing the sales of the defendant received the money sent by the client as no sales fee does not pay, citing the cancellation of the deed and registration is prompt that I found.
The Defendant’s Answer:
5. The defendant’s deputy filed a response petition; the result of the agency contract between the parties the relationship of the plaintiff’s attorney about the subject matter of the case the defendant wish to sell any immovable apartment was given the authority to price and conditions, and that his client pursuant to this authority that real estate is too 16.500,00 TL he sold at a price of year program, a proxy relationship exists between the parties and that the plaintiff’s sales, but you might be paid for, the sales price was paid for by the plaintiff, this payment would be to hire proved in the case of opening the case, arguing that the rejection of the case is asked to decide.
The Decision of the Court of First Instance:
6. Bursa 6. The Order of the Court of First Instance dated 05.11.2013 and dated 2011/126 E., 2013/500 K. by his numbered decision; a power of attorney to any person the subject matter of the case in the matter of any immovable selling price and conditions in the apartment given the authority to the defendant, the defendant’s real estate on 24.06.2008 16.500,00 TL sold Güneri Year, and after that, on your own real estate land value, as of the date of the lawsuit 66.295,00 TL power of attorney as of the date of, too 41.308,00 TL is total 50.160 the defendant to the plaintiff on various dates,00 TL EFT the money sent in by, any irregularities were not recorded in the sales process, in addition, according to expert reports, the price shown at the sales stage and the bank transfers made between the parties were deciphered on the grounds that they were close figures, so the case could not be proven.
The Decision to Spoil the Private Apartment:
7. Within the time limit against the above-mentioned decision of the court, the deputy plaintiff has requested an appeal.
8. Court of Cassation 1. The Legal Act of the Department is dated 12.01.2015 and is dated 2014/1946 E., 2015/60 K. by its numbered decision, the decision of the local court was approved by a majority of votes. However, upon the request of the plaintiff’s deputy to correct the decision against the approval decision, the decision correction request was accepted by the Special Department dated 22.06.2015 and dated 2015/6997 E., 2015/9243 K. by its numbered decision, the approval decision was abolished and;
“…Although in the concrete case the defendant argued that he had purchased the real estate and registered it on behalf of the plaintiff, there is no doubt that this defense can be proved by written evidence in accordance with the decision to Merge the Case Law No. 20/6 of 05.02.1947 of the day 05.02.1947. On the other hand, aslolan is supply, and in the face of the rule that the building is subject to the ownership of the integral parts and supply, the defendant can only ask for the money he has spent on the construction of the building.
In another aspect, it is clear that the power of attorney used to provide disputed real estate is valid. However, in order to be accepted that the guarantee is correct and healthy, in addition to the fact that the power of attorney is valid, it is reasonable to guarantee the real estate at a real or close to real price. It should be recognized that the property was damaged in the intika, which was made at a very low, symbolic price.
In the current case, the price shown in both representations is 16,500 liras, and the court has determined the costs of the real estate on the date of the power of attorney and on the date of the case, and the costs on the contracting dates have not been determined.
In these circumstances, considering that the building is an integral part of the building on the supply of the immovable in conjunction with the contracting 50.160 the plaintiff by the defendant on various dates in the dates of the determination of value or selling price of the animal pounds from witnesses that were to be taken by the plaintiff to be asked again, compared with the cost of the sale price to be fixed in the determination as to whether plaintiff’s zararlandirili zararlandirilm and clarification, if it is determined not zararlandirild, acceptance of the case otherwise, the rejection of the case should be decided, but it is not correct to make a decision in writing, content with the missing investigation …”the verdict was overturned by a majority vote on the grounds.
The Decision to Resist:
9. Bursa 6. The decision of the Court of First Instance dated 23.11.2015 and dated 2015/796 E., 2015/906 K. the grounds in the first sentence of the numbered decision were repeated and resisted in the previous decisionon the grounds that the land price and the money sent to the plaintiff were in compliance, and the contrary could not be proved by the plaintiff with the same force of evidence.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the deputy plaintiff within the time limit.
II. DISPUTE
11. The dispute that came before the General Assembly of the Law through resistance; Court review whether the decision was made as a result of the missing, and here, according to the result to be reached in conjunction with the contracting dates by determining the value in the building on the immovable, the defendant sent by 50.160,00 TL sales price of the animal were to be taken by the plaintiff or that the witnesses and the determined value of the property sales price that is asked again and again by comparing it with an appropriate decision of whether to be clarified whether plaintiff’s zararlandirili and zararlandirilm and are collected at the point.
III. reason
12. The case concerns the cancellation of the title deed and the registration request filed on the basis of the legal reason for the abuse of power of attorney.
13. 502 of the Turkish Code of Obligations No. 6098 (TBK), which entered into force on 01.07.2012. according to the first paragraph of the article, a power of attorney agreement is a contract in which the attorney undertakes to perform a job or transaction of the power of attorney. In a proxy agreement, which is a contract of employment in a broad sense, the proxy undertakes that the work or transaction assigned to him is performed in accordance with the will and benefit of the proxy.
14. The power of attorney agreement is regulated by the general provisions of the Turkish Commercial Code (40 and 48. 1) it should not be confused with the representation relationship. Power of attorney is a bilateral contract, while the power of representation is a unilateral legal act. In general, the proxy refers to the internal relationship between the proxy and the proxy, dec representation refers to the external relationship between the proxy and the third person dec whom the proxy transactions through the proxy. According to the provisions of the Turkish Code of Obligations regulating the representation and attorney relationship, the power of attorney agreement is largely based on the mutual trust of the parties. Most of the deputy’s debts arise from this element of trust, his obligation to behave in accordance with the interests and will of the deputy. Because the power of attorney should be used mainly for the benefit of the client. This is a natural consequence of the employment contract.
15. As a matter of fact, the debt of loyalty and care was recognized as the most prominent debt of the deputy to the proxy in the TBK and 506, which has the title of “Personally performing, showing loyalty and care”. in the article;
“The deputy is obliged to personally fulfill the deputy’s debt. However, in cases where the proxy is authorized or the situation makes it mandatory or possible, the proxy may have someone else do the job.
The deputy is obliged to carry out the work and services he undertakes with loyalty and care, taking into account the legitimate interests of the deputy.
Determining the responsibility of the attorney arising from the duty of care is based on the behavior that a prudent attorney who undertakes work and services in a similar field should demonstrate”.
16. 389 of the Code of Obligations No. 818, which was in force at the time of the notification of the subject matter of the case. after the provision is made in the first paragraph of the article that the deputy cannot oppose the explicit instruction of his client, 390. in the article;
“The deputy’s liability is subject to the provisions of the public liability of the employee.
The deputy is a taxpayer with a good performance of his/her power of attorney against the client.
The provision ”The client is obliged to do it himself, unless the proxy is obliged to hold someone else or in accordance with his condition, or the period is not available to replace someone else in his place“ has been included; The phrase ”performance in a good way” here is 398 of the Swiss Code of Obligations, which is the original provision. it is necessary to understand it as “faithfully and diligently performed”, as in the article.
17. The concept of loyalty debt refers to the deputy’s obligation to protect the interests of his client within the framework of the purpose stipulated by the contract and to subordinate his own interests to the client’s, in accordance with the trust placed in him both during and after the performance of the power of attorney. According to the life experiments and the normal course of affairs, the deputy makes the necessary attempts and behaviors in order for the intended result to be successful with the job and avoids behaviors that may prevent the successful result, which constitutes the subject of the duty of care.
18. It is clear that in accordance with the above provisions, the deputy will be under the obligation to act in accordance with the interests and will of the deputy, to avoid harmful behavior for him. If the scope of the power of attorney is not clearly indicated in the contract, the TBK’s 504/1. it is determined according to the nature of the work to be performed in accordance with the article. Even if there is no clear provision in the contract about how the power of attorney will be fulfilled or the transaction remains within the limits of the authority of external representation, this obligation of the attorney is always present.
19. If the proxy does not fulfill this obligation, there may be an abuse of the proxy agreement, especially if the proxy intentionally uses the proxy to the detriment of the proxy, for the benefit of himself or someone else. Because the power of attorney agreement is a contract that includes the performance of work on the basis of trust, the protection of this trust is 2 of the Turkish Civil Code No. 4721 (TMK). it is also a requirement of the honesty rule, which is expressed in its article.
20. In practice, cases of abuse of power of attorney are observed to intensify, especially in cases where the trustee transfers a real estate that he is authorized to sell by selling it at a very low price compared to its fair value. However, the General Meeting of the Law is dated 19.12.2019 and is scheduled for 2017/1-1272 E., 2019/1399 K.; dated 02.12.2020 and dated 2017/1-1252 E., 2020/992 K. as emphasized in their numbered decisions, it does not give the owner the right to sell by going beyond reasonable limits, ignoring the rule of honesty, loyalty and care, stating even the person he will sell, by authorizing the proxy to sell the real estate to anyone he wants for the price he wants, ignoring the debt of honesty, loyalty and care. The deputy who commits an action or an action incompatible with the benefit of the deputy shall be liable in accordance with the articles mentioned.
21. However, in case of abuse of the power of attorney, the question of whether the proxy’s transactions with third parties will be binding on the power of attorney will also be encountered. In this case, the person who has concluded a contract with the deputy is subject to Article 3 of TMK No. 4721. if he has good intentions in the sense of his article, that is, he does not know that the proxy has abused his power of attorney, or if he cannot know that he has taken the expected care of himself, if he cannot, his contract with the proxy applies and binds the proxy. Even if the proxy abuses his/her power of attorney, this issue remains an internal problem between the proxy and the proxy, and cannot affect the rights gained by the person dec contracts with the proxy.
22. However, if the third party comes out and cooperates with the proxy, or if it is malicious and knows or needs to know that the proxy is abusing his/her power of attorney, the proxy is not considered bound by the contract, TMK 2. it should be considered as a natural consequence of the rule of decency in the article. Since the article of the law in question is of a binding nature, it is mandatory to be considered spontaneously (formally) by the judge. On the contrary, the idea would be to encourage bad faith, at least to turn a blind eye to it. However, in all modern legal systems, bad faith has not been preserved and has always been condemned. As a matter of fact, practical and scientific opinions have also developed and gained stability in this direction (the General Assembly of the Law dated 07.12.2011 and dated 2011/14-609 E., 2011/744 K.).
23. Attorney misconduct in hand with the person who has a contract with the trustee and counsel, and to work in cooperation, or at least knows that the mission of succession have been abused, or needs to know if that proxy, to terminate the contract, in this context, according to the agreement, if the cancellation of the deed the deed may always foreclosed on.
24. On the other hand, the judge, as a rule, cannot independently investigate whether cases that are the subject of dispute between the parties have occurred. dec. The parties must prove whether an event has occurred or not. The issue of which party the burden of proof will belong to in a case is determined by Article 6 of TMK No. 4721. in its article, “Unless there is a provision to the contrary in the law, each of the parties is obliged to prove the existence of the facts on which it bases its right. 190 of the Civil Procedure Code No. 6100 (HMK), the burden of proof rule, which is one of the most important issues of procedural law, is regulated as “. in the article “The burden of proof belongs to the party that derives the right in its favor from the legal result attached to the alleged case, unless there is a special regulation in the law. it has been ruled as “.
25. It is clear that the burden of proving that the power of attorney has been abused will also belong to the plaintiff making the claim in accordance with these general provisions described.
26. As for the concrete incident that is the subject of the dispute; plaintiff Bursa 7. Journal number and date 24.03.2005 noterligince held by the trustee appointed attorney, the defendant’s brother, 02777, maliki to undertake the construction of 11 numbered parcels of real estate, construction-related operations and also authorises any person to sell real estate to perform at any price. The defendant, who was authorized in this way, secured the real estate by selling it to his wife Senem Guner on 24.06.2008 for a price of 16.500,00 TL, and as a result of the sale transaction with the same price on 22.12.2008, it was registered on behalf of the defendant. On the other hand, if there is a five-decker building on the immovable property subject to the lawsuit, as a result of the discovery made by the court, the land value of the immovable property on dec1.03.2011, when the lawsuit was filed, was determined to be TL 66.295,00; the land value on 24.02.2005, when the defendant was appointed as a trustee, was determined to be TL 41.308,00.
27. When the concrete event is evaluated within the scope of the described legal regulations and principles; the answer of the defendant pursuant to the authority of the client to meet the deputy of the total sales, real estate 16.500,00 TL wife sell, the price paid to the plaintiff by the court of a petition, although the evidence on 29.03.2012 defended contains a list of (2) a numbered paragraph of the defendant’s estate bought with his own money, but because you owe the IRS in 2005 with the plaintiff’s attorney recorded and registered in the name of brother, your brother trust and confidence with her own money that bought it three times with two floors built on the plot to be licensed unlicensed, he explained that the real situation consists of this, and also that the plaintiff listened to the previous owner who bought the real estate as a witness at the hearing dated 25.06.2012, and the said witness made a statement in the same direction. 29.11.2012 petition the court for a client in the sales price as the plaintiff offered on 50.160,00 TL specifying to send the money, the money belonging to the plaintiff by date 11.06.2009 21.02.2011 dates between the bank statement was sent on behalf of nine, presented in the petition dated 05.12.2012 of the plaintiff’s construction of the building, because there is no contribution to the plot by taking the value of the immovable buildings made his brother, who for the arrival of the power of Attorney given to the defendant as the cost of land 50.160,00 TL argued that money is sent.
28. As can be seen, the defense in the petitions submitted by the defendant is contradictory in itself. In the reply petition, it was argued that the relationship between the parties was purely a proxy relationship as stated in the lawsuit petition, but then it was argued that the defendant actually registered the real estate he bought with his own money on behalf of his brother, and the power of attorney was also dec for the return of the real estate to the defendant. This defense, because it contains a fiduciary claim case dated and written in accordance with Law No. 20/6 05.02.1947 the decision to merge the faith of a document is required to be proved by the defendant as the plaintiff in the name as registered on behalf of own real estate price after paying the registration is made to put forward and is contrary to the nature of life. In addition, the sale price, announced as TL 16,500.00, was also later amended and it was claimed that TL 50,160.00 was paid.
29. However, the power of attorney agreement is largely based on the mutual trust of the parties. At the heart of the concept of trust are such meanings as truthfulness, honesty, frankness, sincerity, reality, truthfulness. 2 of the Turkish Civil Code No. 4721, which is one of the universal and general principles of law. in accordance with the “principle of honesty” stipulated in the article, everyone is obliged to follow the rules of honesty when exercising their rights and fulfilling their debts. It does not protect the legal order from blatant abuse of a right. A general restriction has been placed on the exercise of rights by the “rule of decency” and the “prohibition of abuse of right”, which have a strict connection between them. According to this mandatory provision of the law, everyone should exercise their rights honestly. The rule of honesty, as a rule of conduct, is a rule that must be followed not only in the exercise of rights, but also during the performance of debts. The use of a right recognized by the legal order in violation of its purpose is incompatible with the rule of honesty, and thus this right is abused.
30. This general principle is also valid in procedural law, and the parties must act in accordance with the basic rule of honesty during the judicial activity in front of the judicial bodies. It is possible to achieve the material truth by holding a fair trial only by maintaining the basic rule of honesty in the case. Therefore, it is an obligation for the parties to follow the rule of honesty and tell the truth during the trial. The subject of this obligation is the cases on which the parties are based.
31. This law abolished in 1086, during the trial, the parties does not contain an explicit provision on the duty to act honestly, if necessary doctrine and the decision of the Supreme Court should be conducted within the rules of the honesty of the case in which there was consensus. In the Code of Civil Procedure No. 6100, it is regulated under the heading “The obligation to act honestly and tell the truth” by the 29th Amendment of the Law. in the article;
“(1) The parties must act in accordance with the rule of honesty.
(2) The parties are obliged to make their statements in a fair manner regarding the cases that are the basis of the case,”the provision is given.
32. During the trial the parties in accordance with their own interests continue to move forward, whether in the matter of Free Will, although they put forward declarations and statements is true regarding both by themselves and with their statement not misleading the court; and the integrity of the claim to the rights of defence must use appropriately. Otherwise, the claim and the defense cannot be heard by the court. Because it is inconceivable that one of the parties will benefit from the result caused by a transaction or behavior contrary to the honesty rule. Therefore, a violation of the rule of honesty will be observed by the judge himself or herself, and it can always be asserted by the parties.
33. One of the ways of behavior that will contradict the honesty rule during the trial is that the party wants to take a procedural action that contradicts a legal situation that it has previously committed. Conflicting with another expression is the prohibition of behavior. In this law, “whoever nakzetmeg sa’y own the right thing by SA if the merdud is” so; “whoever his own/said/done to disrupt the thing itself/if he tries to ignore this behavior does not result in/ignored” are expressed in the form of.
34. For the reasons described, the defendant’s defense was not respected by the General Assembly of the Law, and according to the evidence presented by the plaintiff, it was concluded that the real estate registered on behalf of the plaintiff in the title deed was first assigned to his spouse by the defendant authorized by proxy, and then inherited from him and the trustee owned it, according to the evidence presented by the plaintiff. It is clear that the immovable property was transferred with a value of TL 41,308.00 in 2005, but at a much lower dec. In this case, it is clear that the deputy, who is under the obligation to act in accordance with the interests and will of the deputy, to avoid harming him, is abusing his power of attorney. In addition, it should be recognized that the authority is abused if the act of harming occurs.
35. In the face of all these facts, it should be decided that the case should be accepted by the local court, taking into account that it has been proven that the power of attorney has been abused by the deputy in a concrete case.
36. As a result, for these different reasons and reasons described, the decision to resist had to be overturned in order for the court to decide on the acceptance of the case.
IV. result:
For the reasons described;
30 of the Law No. 6217 on the adoption of appeals by the plaintiff’s deputy and the decision to resist for the above-mentioned various grounds and reasons. article 429 of the Code of Civil Procedure No. 1086, which is applied with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100. in accordance CORRUPTION,
Upon request, the advance fee of the appeal will be returned to the depositor,
440 of the same Law. in accordance with the article, it was unanimously decided on 18.02.2021 that the way to correct the decision would be open within fifteen days from the date of notification of the decision.
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