General Assembly of the Law 2017/2539 E. , 2018/1149 K.
“Text Of Jurisprudence”
COURT : Commercial Court
At the end of the trial held for the case “cancellation of cooperative partnership and decommissioning and registration of land titles” between the parties, Bakırköy 2. 09.09.2011 day and 2009/313 E, which were issued by the Commercial Court of First Instance regarding the rejection of the case., 2011/457 K. the decision No. 23 of the Court of Cassation is appealed by the deputy plaintiff. 17.04.2012 day and 91.2012 E of the Legal Department., 2012/2907 K. by his numbered decision:
“… The deputy plaintiff shall provide his client with half of the partnership share in the defendant cooperative and half of the immovable property numbered 785 island parcels attached to the share of the defendant, annotated on the records of the cooperative that he owns half of your client’s share slipped downloaded fulfilling obligations pursuant to the share transfer agreement of the defendant, whether it is in the process half of the shares between the parties for the purpose the age, all of the shares transferred in this way is possible due to the lack of an era as shown, the actual transaction between the parties the absolute nullity of the superstitious, it is also apparent is invalid because the process muvazaa saying, the cooperative demanded and sued to cancel the registration of the immovable property with its share in the name of the defendant and to decide on its registration on behalf of its client.
The defendant … the deputy, the plaintiff’s own share of the construction was not caused by the fault of his client, although his client made the necessary attempts, construction was not allowed by the relevant institutions, the plaintiff’s Istanbul 7 for the performance of the contract. Arguing that the lawsuit he filed in the Court of First Instance was a nuisance, he asked for the case to be dismissed.
The Defendant Cooperative has not responded to the lawsuit.
Court of claims, the scope of the expert’s report was adopted and the file according to the plaintiff with the defendant made an agreement for the transfer between cooperative ½ of the share of sin, sin could not cut ½ kooperatifce share split by stating that the defendant is the contract between the plaintiff issued the decision on the registration of the share of the immovable and connected to the share held, with half of that belonged transfer takes place agreed, but where are handed down to the defendant of the payment, this is where a fiduciary is located between the parties, the parties where the faithful rendering is violated, the defendant gained in the operation of the faithful of the partnership is valid, it was decided to dismiss the case on the grounds that the plaintiff did not make a request due to breach of contract, that the plaintiff filed a separate lawsuit for the performance of the contract and the rights arising from the contract, and that the case was a nuisance.
The decision was appealed by the acting plaintiff.
1- According to the articles in the file, the evidence on which the decision is based and the reasons for it, there is no inaccuracy in the discretion of the evidence, the other appeals of the plaintiff’s attorney, which fall outside the scope of the following paragraph, were not considered in place.
2- The case relates to the plaintiff’s request to cancel the transfer of shares to the defendant due to mutvazaa and to register the real estate related to the share and share on behalf of the plaintiff. As can be seen from the above summary, the transfer of ½ share and share-related real estate between the plaintiff’s deputy, his client and the defendant was agreed upon, the transfer of ½ share is 19 of the Law on Cooperatives No. 1163 Dec. despite the fact that the real purpose of the parties was this, the plaintiff’s rights to the real estate and ½ of the share were recorded in the records by registering that the defendant owned the entire share in the cooperative records, the apparent transaction was successful, and the actual intended transaction was falsified due to the prohibition of the law, the real estate and the share were requested to be registered on behalf of the plaintiff. 19/1 of the Law on Cooperatives No. 1163.according to the provision of the article, the cooperative partnership includes at least one share. In the face of this provision of the law that the share of the partnership cannot be decoupled except for the exception provision on the situation between the heirs, it is not possible for more than one person to be a partner for the same share or to transfer half of one share to another.
Since the real estate subject to litigation has not been transferred to individual ownership, it is registered in the name of the cooperative. In accordance with the contract between the defendant and dec plaintiff, the parties have agreed that the specified amount of the share and the real estate attached to the share belongs to the plaintiff. As a rule, the plaintiff can file a lawsuit on the basis of this agreement only after the registration of the real estate in the title deed on behalf of the defendant. While the immovable property is registered on behalf of the cooperative yet, a lawsuit cannot be filed for the ½ share and the immovable property in a way that allows the transfer of the half share of the cooperative partnership, nor can it be mentioned that the relationship between the parties is decoupled. According to the rule, there are few in most of them, there is also a request for determination in the claimant’s request for cancellation of the title deed. Therefore, while a determination decision should be made by the court considering that the plaintiff has the right to ½ of the real estate related to the share, it was not considered correct to decide to completely dismiss the case.…”
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 documents in the file were read, the requirement was discussed:
The case is related to the request of the defendant to register as a cooperative partner with the cancellation of the cooperative partnership and the request to register the real estate allocated to the cooperative partnership on behalf of the plaintiff with the cancellation of the title deed registration.
The deputy plaintiff dec that his client sold half of the partnership right to the defendant … while the defendant was a partner of the cooperative, that their application for processing the transfer to the cooperative records was rejected by the cooperative on the grounds that the share could not be divided, and they decided that the ½ of the cooperative partnership share and the ½ of the real estate specific to the share belonged to the plaintiff should be valid between themselves, although the plaintiff fulfills its obligations by transferring the entire right of partnership to the defendant, the defendant
The plaintiff’s attorney the defendant in fact signed on 24.11.1998 in the records of the last of the cooperative and the cooperative cancellation of the decision of the board of directors in accordance with the law and procedures and on the annulment of the decision as prescribed by the law of time has been requested if, however, after the cancellation of the deed and the registration of the plaintiff’s ferdilesme it by opening the case against the plaintiff, since the client can request that has the capacity of the parties in this case also the plaintiff’s Istanbul 7. The case registered on the basis of court opened and still caught up 2008/224 of the outcome of the case should be expected, on the merits of the plaintiff’s claims is in place, if not completely that he couldn’t do construction on their stock due to legal regulations is not blocking any of my client, the plaintiff in this case again before Küçükçekmece 2. He requested that the case be dismissed by stating that the case he filed in the Court of First Instance was decided to be dismissed, that the plaintiff did not take action as he claimed, and that the person could not withstand his own case even if they did, that there was a one-year time limit for filing a lawsuit against the proceedings, and that the case was not filed within the time limit of the case.
Fiduciary by the court between the parties, and the validity of the process are made according to the opinion of the faithful, to protect the processing of faith on behalf of the partnership does not constitute a violation because the defendant due to the defendant fiduciary of the partnership between the parties are cooperative cooperative partnership, particularly where the subject of the case handed down the immovable subject to registration due for the case is dismissed.
Upon the appeal of the plaintiff’s attorney, the decision was overturned by the Special Department on the grounds described above.
Plaintiff’s petition in the Local Court the defendant of the claim on behalf of the partnership cancel the registration of the case with the subject matter of the plaintiff on behalf of registering immovable, during the trial, with the improvement in demand is not changing and expanding, therefore, depending on the demand (HMK m. 26) if it is decided there are few in most of the area of decision of” should be decided in accordance with the principle stated that, although the plaintiff’s request to cancel the deed and the registration is open for registration because a lot of demand identified in the demand exists for them to accept that demand creates its decision to resist against the principle of commitment on the grounds that it has been given.
Upon appeal by the plaintiff’s attorney, the decision was overturned by the General Assembly of Law on the grounds that the provision of duly resisting has not been established.
The decision to resist was made by the local court on previous grounds; the decision to resist was appealed by the deputy plaintiff.
The conflict from the front of the law through the General Board of resistance: a cooperative partnership of the cancellation and, correspondingly, in the case of voluntary cancellation and registration of the deed; most identified by the decision of the provision in the rule, there are less, demand, commitment will not create a rule violation; cannot be given points according to a decision to be reached at the detection result here are collected.
The issue of the dispute should be considered separately from the point of view of both defendants.
I- From the point of view of appeals against the lawsuit filed by the plaintiff’s deputy against the cooperative;
It should be noted immediately that in the first paragraph of Article 19 of the Law on Cooperatives No. 1163, “At least one partnership share must be taken from each person entering the cooperative. The articles of association may determine the highest had and provide for the receipt of more than one share by a partner within this had.”, which includes the regulation. According to the provision of this article, every person entering into a cooperative must have at least one partnership share. Therefore, only one partner can be admitted to the cooperative for a share and the rights attached to this share.
However, there are no clear provisions in the Law on Cooperatives and in the Cooperative Articles of Association on dec to conduct the relationship between these persons and the cooperative if more than one person is a partner for one share. In this case, it is necessary to apply the first paragraph of Article 432 of the Turkish Commercial Code (TCC) No. 6102 on joint stock companies with the reference to Article 98 of the Law No. 1163. The first paragraph of Article 432 of the TCC states that “If a share is the joint property of more than one person, they may appoint one of them or a third person as a representative to exercise their rights arising from the share at the general assembly. it contains an arrangement in the form of ” “. Accordingly, since the share of the partnership cannot be divided against the cooperative, if more than one person has become a partner in one share, they will be able to exercise their rights against the cooperative through a common representative. If they do not appoint a joint representative, the notification to be made to one of them by the cooperative will be valid for all of them.
In a concrete case, the plaintiff and the defendant … if the other defendant are partners in a share in the cooperative together, they can exercise their rights against the cooperative only through a joint agent, and the plaintiff and the defendant cannot be divided due to the fact that the share of the partnership in the cooperative As a result, the decision to resist the rejection of the lawsuit filed against the cooperative is in place.
The law of the General Assembly during the discussions, all cooperatives and cooperatives hereof in accordance with Article 19 of the law can be argued against the division of the shares, although they are not cooperative in the records of the case and cut the immovable ozgulendi 1/2% due to the location of documents belonging to the plaintiff, the relevant presence by the cooperative, therefore, it was suggested that the decision of the local court should be overturned by stating that the determination provision to be given should be accepted that it would bind the defendant cooperative, but these opinions were not accepted for the reasons described above.
II- As for the appeals for the dismissal of the lawsuit filed by the plaintiff’s deputy against the defendant …;
The main purpose of civil procedure law is to protect the subjective rights of the parties arising from material law. The subject is also the recognition of these subjective rights, their protection in case of violation or danger of violation. Therefore, a decriminalization relationship is established between the person and the State with the application of the persons whose rights have been violated. According to the person’s request, this relationship may be a litigation relationship, a dispute-free judicial relationship, or a temporary legal protection relationship. A number of principles have also emerged while civil trial law is basically based on these relations. Articles 24 to 33 of the Civil Procedure Code No. 6100 (DEC) have regulated the principles that dominate the proceedings. Some of these principles are also included in the Code of Civil Procedure No. 1086.
One of the principles that dominate civil law proceedings is the principle of adherence to demand. This principle is clearly stated in Article 26 of the HMK. Accordingly, the judge is bound by the demands of the parties. If the limited number of exceptions shown in the laws are set aside, he cannot decide on more than a request or anything other than a request. However, there is no obstacle for the judge to decide less than the result of the request according to the situation.
The principle of commitment to the claim implies that, in essence, the judge is bound by the request of the parties. The first meaning of the principle of commitment to the claim is that the court cannot decide on the matter that the party does not request. Accordingly, it is determined by looking at the petition of claim whether the party has requested what and whether the judge can make a decision about what. The subject of this determination is the desired legal result. In this respect, the decision-making limit of the judge shall be determined by the case petition
The second meaning of the principle of commitment to the claim is that the court cannot decide on more than the party’s request (HMK m.26). This meaning, which is loaded with the principle of commitment to the request, is also connected with the “principle of saving” expressed in Article 24 and the “principle of fulfillment by the parties” contained in Article 25.
Finally, another meaning of the principle of commitment to the request is that the judge cannot decide anything different other than what is requested. The inability to decide on something different from the requested one is determined by comparing the final part of the petition with the final part of the provision issued.
However, attachment to the claim is not applied in the event that, as a result of the trial, it is determined that the plaintiff has less than the right requested (HMK m. 26). Deciding on less than demand is based on the principle that ”there is little in most”. This rule, on the other hand, refers to the plaintiff’s decision to make less, which is of the same nature as the result of the claim. As a matter of fact, when a lawsuit is filed, the plaintiff’s request is to provide legal protection from the court at the rate that it has provision in material law. In other words, the plaintiff’s request will not mean “either decide all of what I want, or decide nothing if you can’t decide all of it,” even though his expectation cannot be fully met. Because the plaintiff’s desire is to protect or restore his right, which he believes has been violated in material law, by filing a lawsuit.
If the concrete event is considered within the scope of all these explanations, it is determined that ½ share of the real estate belongs to the plaintiff from the documents in the file, but due to the fact that the cooperative has not become personal property, it is impossible to decide on the registration of ½ share of the real estate subject to litigation on behalf of the plaintiff, and as a rule, title cancellation and registration cannot be requested without registering the real estate on behalf of the plaintiff.
However, according to the rule that there are also few of them in the majority, it should be assumed that the request for registration of ½ share of the real estate subject to litigation on behalf of the plaintiff also includes the request for determination. Because each eda case is a broader case that includes a request for determination on the same issue. Although the existence of the plaintiff’s right has been determined, the determination decision to be made in cases where the eda provision cannot be established will dec the legal uncertainty between the parties and ensure legal peace. In that case, it is not right to decide to dismiss the case when the determination decision should be made by the court.
As a matter of fact, 07.07.1965 days and 1965/5 E., 1965/5 K. in the Decision to Merge the Case Law No. 31.01.2004 days and of the General Assembly of Jurisprudence. 2004/7-411E., 2004/477 K. in their numbered decisions, it was accepted that the request for determination is the forerunner of the eda case and that each eda case also carries a request for determination.
During the negotiations at the General Assembly of the Law, the partnership’s share of the plaintiff is the owner of the rights on immovable ozgulenmi ½ decision to determine that the provision in Article XIX of the law on cooperatives constitute a violation of the regulations, and that the dispute between the parties, the share of the partnership not cooperative in partnership with the determination of the amount of the cancellation of registration due for the plaintiff on behalf of immovable spent the subject of the request, although it is not identified by the provision of a rule are a few to many as the establishment of conditions identified in the incident was not possible by opening the case should be recognized and affirmed the decision of the court indicating the absence of local although his opinion has been put forward, these views have not been adopted by the majority of the Board for the reasons described above.
As such, it is necessary to comply with the decision to disrupt the Special Chamber adopted by the General Assembly of the Law, while resisting the previous decision is not in accordance with the procedure and law.
Then the decision to resist in this direction must be overturned.
CONCLUSION: 1) For the reason described in paragraph (I) above, the decision of the plaintiff’s attorney to resist with the rejection of appeals is UPHELD on the grounds described above,
2) The decision to overturn the decision of the Special Chamber to resist the adoption of appeals of the plaintiff’s deputy for the reasons described in paragraph (II) above, and the decision to overturn 2. provisional Article 3 of the Code of Civil Procedure No. 6100 for the reasons indicated in subparagraph. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. according to article 440 of the same Law, if requested, the advance fee for the appeal will be returned to the depositor. in accordance with the article, the decision was made by majority vote on 30.05.2018, with the path to correction of the decision open within fifteen days from the notification of the decision.
POST, VOTE AGAINST
Article 19 of the Law on Cooperatives No. 1163. according to the article, at least one partnership share must be received from each person entering the cooperative. That is, every person entering into a cooperative must have at least one partnership share.
In its decision to overturn, the private office’s decision to declare that “while the court should make a determination decision considering that the plaintiff has a right to ½ of the real estate related to the share, it was not considered correct to decide to completely dismiss the case …” showed a direction contrary to the article of the law written above.
In addition, there are no conditions for filing a detection case in a concrete case.
In this respect, I am in opposition to the decision of the esteemed majority to overturn the opinion that the decision of the local court to resist is in place and should be upheld.
POST, VOTE AGAINST
The case is related to the cancellation of the defendant’s cooperative membership and the registration of the plaintiff as a member of the cooperative, as well as the request to register the real estate allocated to the cooperative membership on behalf of the plaintiff with the cancellation of the title deed registration.
Deputy plaintiff; in summary in the petition for action: Küçükçekmece 785 island, which hit the defendant cooperative’s membership number 48 of his client, lost half of his membership right when he was the owner of real estate number 5 parcel, Istanbul 7. The date of the notary public Journal of 38756 and sold to the defendant No. 32,000 TL …24/11/1998 Agreement and handover of the records of the cooperative to the processing of the event in history that cannot be divided by the share of cooperatives 22/12/1998 of the application are denied on the grounds, then on the date of transfer of the right to 17/03/1999 among themselves by signing a contract to be valid, having decided among themselves half, the cooperative decided to transfer of membership membership is transferred in accordance with the law as, transfer of membership rights under this agreement in the history of 17/03/1999 also had the consent of the client, cooperative 29/04/999 decision dated by the transfer has been registered and the share of the plaintiff’s semi commentary that was given, and afterwards upon his client to fulfill the obligation, although the respondent was doing construction on its own share of clients failed to do his share of construction on his client 1.500.000 USD worth of membership cooperative that is immovable and deprived of the right notary caveat suffered with, doesn’t get a result, Küçükçekmece 2. The court of First Instance of what is being requested of the execution of the contract 2006/138 numbered file in the main, however, if the case is denied, the parties where the main purpose of the plaintiff’s share with the transfer of the immovable is located ½ Maliki both sides, some on their part to build on the cooperative shares registered in the name of defendant on behalf of the client by stating that it should cancellation of registration with the defendant on behalf of the membership and membership of the cooperative on behalf of the plaintiff of the right of cancellation of the registration, again, 785 ada 5, where the right to membership is specific, requested that the decision be made to register the real estate numbered parcel on behalf of the plaintiff.
The defendant’s deputy summarizes in his answer: Plaintiff’s Istanbul 7. The Court of First Instance has opened the case numbered 2008/224 and it should be expected that the case is still pending, the plaintiff’s claims on the basis are not in place, the plaintiff’s inability to build on his own stock is entirely due to legal regulations, his client has no obstacles, the plaintiff was again a minor before this case 2. Stating that he filed it in the Court of First Instance and that it was decided to dismiss the case heard on the basis of 2006/138, that the plaintiff did not have an agreement as he claimed, and that a person could not rely on his own agreement even if there was such a matter, he requested that the case be decided to be dismissed.
1.4. Dispute: In most cases of cancellation of cooperative membership and cancellation of the title deed and registration, there are few of them, whether the decision to determine the requirement of the rule will constitute a violation of the rule of adherence to the request; whether the decision to determine can be made according to the conclusion to be reached from here is collected at the points.
Relevant Legislation
Code of Civil Procedure 24/1-2-3 . article: The principle of saving
(1) A judge may not examine and decide a case spontaneously without the request of one of the two parties.
(2) No one may be forced to file a lawsuit in his favor or claim his right, unless it is clearly stated in the law.
(3) The authority to save money on the subject of litigation, which the parties can freely save on, continues after the lawsuit is filed.
26 of the Code of Civil Procedure. article: The Principle of Commitment to Demand
(1) The judge is bound by the results of the parties’ requests; he cannot decide on more than ten or anything else. Depending on the situation, the claim may decide for less than its result.
(2) The provisions of the law on the fact that the judge is not bound by the request of the parties are reserved.
article 1163 of the Cooperative Code. 19/1:
Partnership Shares, Personal Receivables
ARTICLE 19- At least one partnership share must be obtained from each person entering the cooperative. The articles of association may determine the highest had and respond to the receipt of more than one share by a partner within this had.
Taking into account the legal regulations related to the above-listed issue;
There is no dispute between the parties that ½ of the membership of a cooperative belongs to dec plaintiff and ½ of the defendants. In the same way, in the decision of the private office to cancel, it is said that “the parties have agreed that the specified amount of real estate related to the share and share belongs to the plaintiff”, and this is also accepted by the higher private office.
In this case, it is indisputable that the membership of the cooperative can be at least one share, the share of the cooperative partnership cannot be divided, and this claim cannot be brought against the cooperative with the articles of law discussed above and the established case law of the Supreme Court of Cassation. The dispute between the parties is not about determining the amount of shares of both the plaintiff and the defendant, but about decommissioning and requesting registration. Then, although there is no demand for the amount of shares that are not subject to dispute, there is no legal benefit in establishing a determination provision by saying that there are few of them in the majority. Because; it can be said that there is a legal benefit if a court decision is necessary at that moment to achieve a person’s right. If there is no need for a court decision, there can be no mention of legal benefit. The judge is bound by the results of the parties’ claims and is obliged to observe whether there is a legal benefit in the case.
As a result, the decision of the local court to resist is in place and I cannot agree with the decision of the majority to overturn it on different grounds, as I am in the opinion of approval.
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