General Assembly of the Law 2017/599 E. , 2020/431 K.
“Text Of Jurisprudence”
COURT :Consumer Court
1. At the end of the trial between the parties for the case related to the request for “termination of the contract and refund of the price”, Bursa 1. Dec. The decision on the dismissal of the case by the Consumer Court the Supreme Court of Cassation on the appeal of the plaintiff 13. 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. The plaintiff filed a lawsuit dated 03.04.2013; While he was in Kusadasi unwillingly and under psychological pressure without the opportunity to read and review the defendant to the company for ninety-nine years for holiday 05.06.2005 dated signed the agreement all payments are made, but didn’t use any of the facilities, described to him with the information that is different from when you see text that is written in the contract, you understand, unless dues reimbursement declaring a holiday, in spite of demanding dues each year, in addition, on 01.04.2013, he claimed that he had notified the defendant of the withdrawal and requested that the defendant be decided to collect the TL 7.560 paid by the termination of the contract.
The Defendant’s Answer:
5. The defendant attorney; that is open for use all year round property subject of the contract, the contract that was signed in person at the facility to be used, and the period of that he was certain the room, room was ready for him in the plaintiff’s chosen the chosen period that has not been used in the time that the right of withdrawal, the contract can be regarded as sales from the door of the client company, occupancy permits, building permits, and that you have all the documentation, such as a document to open a place of business, however, these documents have nothing to do with the case at hand, because the timeshare right and the timeshare agreement should not be confused, as long as the tenant can take advantage of the lessor, as long as the owner of the timeshare right is also connected with the contract, as long as the owner of the timeshare right can take advantage of the timeshare right, the person who has experience and examined the facility on a timeshare by visiting and seeing the timeshare, the plaintiff, who liked the facility and signed the contract, asked for the dismissal of the case, arguing that it was unfair and malicious for the plaintiff to open the case with a number of untrue statements without even using the right to withdraw from the terms of the contract.
ruling:
6. Bursa 1. The decision of the Consumer Court dated 10.10.2013 and dated 2013/2668 E., 2013/1304 K. by his numbered decision; although it has been suggested that the plaintiff was psychologically pressured by the party and signed the contract for this reason, given that no evidence was presented about it, the existence of a reason that crippled the plaintiff’s will at the time of signing the contract cannot also be accepted, the plaintiff may terminate the contract for justified reasons and ask for all of the money he paid if the defendant did not fulfill his actions or did not fulfill his actions, but evidence has not been presented about it, the contract signed on 05.06.2005 03.04.2012 that are opened on the case while considering the agreement between the parties with valid and legal consequences for an ongoing agreement, adopted by the adoption of the agreement of the parties required, with the date of signing of the contract in the period between the date the case was opened in the suspension of approximately seven years, we cannot talk about because it is on the grounds that the case is dismissed.
The Decision to Spoil the Private Apartment:
7. Within the period of time against the above-mentioned decision of the Local Court, the plaintiff filed an appeal.
8. Supreme Court 13. The Law Department has a certificate dated 27.11.2014 and dated 2014/11809 E., 2014/37825 K. with the decision no.; “…In the time-off agreement signed between the plaintiff and the defendant, it was explained that the facility subject to a time-off holiday was a facility completed on 323, 145, 146 parcels, completed on 154 parcels dec completed on 154 parcels. According to the Kusadasi Municipality’s letter, which was submitted to similar files belonging to the facility subject to the lawsuit that reached our apartment, it was understood that a building use permit No. 189 dated 25.09.2002 was issued for 323 island 154 parcels, but a building use permit was not issued for 166 (old 146) and 145 parcels. In these circumstances, the plaintiffs have permission to use the structure, thereby ready-to-use, non-exercise of the right property for a holiday under the terms of the contract and the contract considering the necessity of keeping alive the absence, the case should be decided upon the adoption of written procedures and the provision of the facility assessment is against the law, and it requires you to break…” – shaped the decision was quashed on the grounds.
The Decision to Resist:
9. The Court dated 05.11.2015 and dated 2015/628 E., 2015/1056 K. by the numbered decision; II of the plaintiff’s contract. 4 of the Regulation on the Use of Half-Time Holidays of the annexed nature of the contract, in which it does not notify the counterparty that it has terminated the contract within ten days, october in the subparagraph. in the article international interval exchange system internasyonel the defendant’s member once said, “members of the US and refer to us in the month of January shall be required to pay annual maintenance fees paid, whether in Kusadasi vacation interval in facilities internasyonel member may use if he wants,” the record where it is given, i.e., the act of the defendant, and may be subject to the ruling of the Supreme Court specified in the contract 145 146 he didn’t have to fulfill to be made in facilities in the plots in question has been obtained permission for the use of the facilities have been completed or construction even though they are not, according to the evidence collected, there is no evidence that the plaintiff consumer can use the right to vacation in other facilities, he wants to use the right to vacation, but the defendant has not fulfilled this act, according to the evidence collected, the defendant’s default cannot be mentioned, on the contrary; over seven years have passed since the signature of the contract, although adopted by the convention without any notice of termination in the way of faith in the seller with the defendant, formed by the act of the defendant as to whether the plaintiff is unable to fulfill seven years after being silent for a long time and no claims are not at the end of the contract signed under duress given the opportunity to read the contract and terminate the contract by claiming that were not to request a refund of the price that was paid with interest that is against the rules of pacta sunt servanda and good faith, otherwise, even if it is accepted; 25/1 of the court’s Civil Procedure Code No. 6100 (HMK). in accordance with the principle of enforcement by the parties regulated in the article, the decision to resist was made on the grounds that it is impossible for the court to formally consider or conduct a study in this direction, if there is a building use permit for the facility that the plaintiff has never put forward and has not expressed at any stage of the trial, which the plaintiff must conduct an examination limited to the plaintiff’s claim.
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 General Board of the resistance path from the front of the conflict with the law; the quantification of timeshare resorts in concrete cases and termination conditions, as well as not claimed by the plaintiff, as to whether the current occupancy permit of the facility to be taken into account and cannot be taken by the court on its own motion points are collected.
III. reason
12. In resolving the dispute, it is first of all useful to briefly address the legal nature of time off contracts.
13. The world tourism industry “Timeshare” and by showing a significant rise in recent years, the tourism sector at the national and international level systems which is a dynamic field circuit of a holiday” in our country, more stringent conditions (figure, the immovable nature, etc.) it is implemented in the form of “timeshare contracts” that provide the connected, owner with the right in kind and “timeshare contracts” that are easier to implement than timeshare contracts, but only give rise to personal rights.
14. Timeshare resorts in contracts before the date 06.03.2003 our legislation does not exist, therefore, in practice, mainly atypical, mixed, and overall each year for the duration of the contract is considered a contract for a specific period of enjoyment in the way of a specific circuit to provide personal rights of the parties, the mutual actions are explained as an anonymous hash to prevent contract while; with the which entered into force on the date specified in Law No. 4822 No. 4077 on consumer protection of the law, Article 6. it has acquired its legal definition in the regulation added to article (B) as subparagraph.
15. Accordingly, the circuit holiday contracts; “for at least three years and in that time, over the years, and can be specific or ascertained for a period of not less than a week after the transfer of rights of use of one or more immovable transfer or contains a commitment to, and a copy must be given to the consumer a written contract or contracts Group.”
16. In the case of a concrete dispute, a dec-time holiday agreement has been signed between the parties, which grants ninety-nine years of use.
17. The plaintiff filed a lawsuit stating that he had never used the facility subject to the contract, that he realized later that the terms of the contract were different from those described to him at the promotion stage, and therefore he wanted to withdraw from the contract. The Special Chamber, on the other hand, overturned the provision on the grounds that the case should be accepted by focusing on a fact that was not put forward in the case at hand. Since the decision was made to resist by stating that the violation is contrary to the principle of bringing by the parties, it will be appropriate to focus on this principle first, and then discuss the fact of the violation over a concrete event.
18. The principle of enforcement by the parties is laid down in Article 25 of the Civil Procedure Code No. 6100 (HMK). in the article it is stated as follows:
“ (1) Except for the exceptions provided for in the law, the judge may not take into account things or cases that one of the two parties has not said by himself or herself, and may not even engage in behavior that may remind them.
(2) Except for the cases specified in the law, the judge may not collect evidence spontaneously.”
19. As a result of this principle, the court can only consider cases brought forward by the parties. This, as a rule, also includes evidence (m. 25/2). The judge may ask the parties to substitute evidence to clarify the incident, but he cannot remind the party of a particular piece of evidence. In contrast, in cases where the principle of formal investigation is applied, the judge spontaneously applies to all the evidence needed to prove the case; the parties can also give evidence until the trial is over. In its simplest terms,; this process, which can be defined as having a judge as well as the parties in charge of preparing the facts related to the case, is called the spontaneous investigation principle and is important in contentious cases involving public order and non-contentious judicial affairs.
20. Indeed, the private apartments of the decision, related to the contract at issue in the file is of many who passed through the occupancy permit appellate review arises as to whether the plaintiff have permission to use the structure, thereby ready-to-use, non-exercise of the right property for a holiday under the terms of the contract and the contract shall not be obliged to keep intact the grounds that are relied on.
21. At the current stage, the legal nature of the building use permit document should be emphasized.
22. Widely “settlement” also known as all or part of a completed structure of a building permit possible to use partitions when completed, the municipality or the Ministry of this section to be used for issuing the construction permit is a permit from the special provincial administration. This permit is in accordance with Article 30 of the Zoning Code No. 3194. it is regulated in the article. Accordingly, “From the municipal, prefectural (…) (1) offices that issue the construction permit so that these parts can be used if the entire structure is completely finished and the parts that can be partially used are completed; 27. according to the article, in order for structures that are not subject to a license to be used in whole or in part, permission must be obtained from the relevant municipality and the governor’s office. Upon the application of the owner, it october be determined that the structure complies with the license and its annexes and that it is not considered a problem in terms of science in its use.”
23. For all structures covered by the Zoning Code (26. except for the exception specified in the article) it is obligatory to obtain building permits from municipalities or governorates (3194 p. K. m. 21). 29 of the Aforementioned Law. according to the article, the construction start time is two years from the date of the license, and if the structure is not started during this period or the structure is not completed within five years with the start time, for whatever reason, the license granted is considered invalid, and in this case it is mandatory to obtain a re-license. As a rule, any changes to the licensed structures are also subject to re-registration. 32 Of the Zoning Code. pursuant to a license by the relevant administration building illegal or unlicensed about building a “holiday” report is prepared; the violation of which is contrary to the license structure that have not been resolved in the case is given to the municipal council or the relevant committee and the costs to be collected from the destruction by the building owner, and municipal authority or the relevant parts that are unlicensed or license by yiktirili is in violation of the building. In addition, Article 42 of the Zoning Code. by applying the article, criminal sanctions are applied by the relevant administration.
24. At this point, it should be noted that the zoning legislation is related to public order and should be formally considered by the court. Because, according to the social state principle, it is mandatory for the State to intervene in structuring activities in order to ensure the public interest within the framework of principles such as public health and safety, urbanization, and effective settlement policy in accordance with the social state principle.
25. Since the principle of being brought by the parties in a matter related to public order cannot be mentioned, there is no violation of the law in formally observing the claim that there is no building permit in many case files that have been moved to the Private Office for appeal review regarding withdrawal requests related to the facility subject to litigation. However, as of the scope of the file, the defendant has not been able to provide evidence to prove that the facility subject to the circuit break has a building permit in accordance with the legislation, even in their defense after the decision to overturn.
26. More important concerning the presence of the occupancy permit property rights in contracts, while ninety-nine-year holiday during the term of the agreement, the consumer pays the price to be delivered to the ambiguity about the fate of the property, forcing you to keep alive the contract is unacceptable. The recognition of the opportunity to use other facilities within the framework of the dec-time holiday exchange system in the contract between the parties will also not change the result, since in the usual course of life the consumer is in the expectation of using the facility to which he wants to be entitled first of all.
27. As such, the decision to resist in writing is contrary to the procedure and the law, and requires the provision to be overturned, while it is necessary to comply with the decision to overturn the Special Chamber adopted by the General Assembly of the Law.
IV. result:
For the reasons described;
Provisional Article 3 of the Civil Procedure Code No. 6100 states that the decision of the plaintiff’s deputy to resist with the acceptance of appeals is for the reasons shown above. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with the atf of its article. in accordance CORRUPTION,
Upon request, the advance fee for the appeal will be returned to the depositor,
440 of the same Law. in accordance with the article, it was unanimously decided on 17.06.2020 that the way to correct the decision would be open within fifteen days from the notification of the decision.
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