General Assembly of Law 2017/2268 E. , 2017/2020 K.
“Text Of Jurisprudence”
COURT : Court of First Instance (in the capacity of Consumer Court)
At the end of the trial held for the case “Compensation for cancellation of title deeds and registration with decency” between the parties, the Mugla Court of First Instance (as a Consumer Court) granted 10.06.2014 days and 2013/811 E. and 2014/324 K. 14. the Court of Cassation requested the deputy plaintiff to examine the decision on appeal.The day of 03/17/2015 and the date of 16080/2014 of the Legal Department. 2015/2946 K. by his numbered decision:
“…The case concerns the cancellation of the title deed and registration based on the contractor’s assignment, the request for compensation at the second level.
The decedent is the heir of the owner of the land plot, Mugla 2. They argued that the decision No. 2013/33 of the Court of First Instance No. 2009/655 was the final provision, that the case should be dismissed due to the absence of a case requirement, that the right to request registration did not occur, and that it should be rejected due to the absence of animosity in terms of price.
By the court, the defendant, the defendant against the heirs of the land owner with the contractor of the request for registration of the deed of cancellation and denial of due to the presence of the final verdict, the plaintiff against the defendant of the claim of the heirs of the owner of the land due to the absence of hostility from the direction of the denial of the defendants, the defendant contractor
The decision was appealed by the deputy plaintiff.
A judgment which is aimed at ensuring stability in the legal system, the depletion of the road against the law decree (judgment in the sense of the shape) and the failure of the legal relationship between parties in a case (the judgment in the material sense) in the form of legal proceedings is located in our system.
303 of HMK No. 6100, a material decisiveness provision that makes it mandatory to be finalized in this sense and aims to ensure that the legal relationship between the parties cannot be re-litigated. it is regulated in the article.
In order for the provision that has been finalized in the sense of the form of a case in accordance with the said article to be able to create a material final provision in another case, the reasons for the case and the result of the claim for the first case must be the same as the paragraph of the provision of the first case and the result of the claim for the second case.
On the other hand, land owners in return for a share of land between the personal rights of the contractor in the construction contract to the third party transfer (conveyance) in the case of the contractor’s performance and it cannot request that the third party is primarily for the determination Act (the works to develop and deliver the debt) that fulfils then be clarified to determine whether the terms of the contract it is imperative that you execute any of his other obligations.
Here it is necessary to make some explanations about what the contractor’s debts arising from the work contract are. In general, in work contracts, the contractor undertakes to deliver a certain work to the business owner by creating it. Article 470 of the Turkish Code of Obligations establishes the basis of the contractor’s “obligation to create the work” in the contracts of works. he gets it from his substance. According to the aforementioned provision; “A work contract is a contract in which the contractor undertakes to create a work and the owner of the work undertakes to pay a price in return for it.”
Creating a work by seeing a dec and delivering the created dec to the business owner (in construction contracts in exchange for a share of the land, delivering the building to the land owner by manufacturing the building in accordance with the contract, its purpose and the rules of science and art) is the main debt of the contractor. As a rule, this is the full performance of the original contract as agreed. Otherwise, the balance of benefits expected from the contract will be broken against one party. In such a case, the contractor cannot be considered to have fulfilled its performance.
As for the concrete incident in the light of the principles mentioned above and the statements made; a construction contract was concluded between the landowner and the contractor in exchange for a share of the land dated 19 dec10 dec1990, and the plaintiff purchased the apartment subject to the lawsuit from the contractor with an externally arranged contract dec Muğla 2. 2009/655 of the court of First Instance, based on the decision of the plaintiff No. 2013/33 the same file a lawsuit against defendants by the plaintiff, the subject of a lawsuit for cancellation of the deed of the apartment, on the same science based on reason and zoning legal to be manufactured in accordance with the rules of the act has not been fulfilled, the construction of the case are not met to an acceptable level and sentence on the grounds that the rejection of the appeal, it was decided to through a review of our apartment are fixed.
The decision by the court is based on facts and the same legal reason, and since the topic of the parties is the same, therefore, the cancellation request and the registration of the deed in terms of the lawsuit dismissed the case on the grounds that it occurred as of the date of judgment is granted in such case, the contractor received the request for acceptance of registration is based on the personal rights assignment drop the contractor’s or its successor, according to the plaintiff’s land in return for a share of the construction contract, construction contract, the purpose of, if it is manufactured in accordance with the rules of science and art and handed over to the owner of the land plot, there can be no mention that the previous decisionis a final provision, since the personal right will be acquired. In other words, in return for a share of the plot due to the assignment of the construction contract based on the contractor filed the continuity of shows and made in the construction of physical construction at the rate may change at any moment, and in this regard two separate case does not constitute a final ruling on the case next in the previous case. Therefore, it was not considered correct to decide to dismiss the case due to the final provision in terms of the cancellation of the title deed and the registration request by the court on the grounds that no declaration was made that the case was filed at the level of construction or according to the new situation that has developed, and the obligations in the Zoning Code were not fulfilled.
In addition, the basis of the request in the case is the assignment process performed by the contractor with a plain written contract. If it is necessary to make a definition, the decoupling of the receivable is a form-dependent agreement between the creditor and the third party who has inherited it, which can be made without the need for the borrower’s consent and is only a lucrative savings transaction. However, the debtor, who was not aware of the assignment process at the time of its execution, becomes able to assert them to the new creditor as well as he has the right to object and defy the previous creditor at the request of the new creditor (TBK m.188).
However, the party based on the assignment transaction must prove the existence of the assignment transaction to the person performing the assignment, as well as against the debtor that he has a personal right due to the assignment. In this regard, it can be said that in such cases there is a mandatory dec friendship between the contractor and the dec of the land plot. In the event of the presence of compulsory litigation friendship, both the contractor and the dec of the land must be parties to the same lawsuit. Therefore, the court decided to separate the compensation claim against the contractor from HMK’s 167.it is not in accordance with the article.
The court should expect that the case seeking compensation against the defendant contractor … should be combined with this case, and a decision should be made based on the merits of the work, but it was not considered correct to make a decision in writing without taking into account the specified issues, so the decision had to be overturned …”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and returning the file 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 papers in the file were read, the requirement was discussed:
The case concerns the cancellation of the title deed based on the contractor’s representation and the request to collect compensation if it is not registered.
Defendants’ proxies are vague in terms of concrete events 2. 2009/655 E of the Court of First Instance., 2013/33 K. they argued that the numbered decision constitutes a final provision and the case should be dismissed due to the absence of a case requirement, that the plaintiff’s right to request registration does not occur due to the contractor’s failure to perform his act if the court does not accept that it is a final provision, and that the case should be dismissed due to the absence of adjectives in terms of a request to collect the cost of real estate.
After the claim for collection of receivables filed by the local court against the contractor … has been reviewed from this case file and decided to be registered in a separate basis number, taking into account that no statement has been made by the plaintiff about the level of construction or the new situation that has developed, Mugla 2. 2009/655 of the court of First Instance, based on Plaintiff’s request to cancel the registration of the deed of the decision 2013/33 decision in terms of a judgment and created by only the price he’s paid the plaintiff may request from the contractor according to the provisions of unjust enrichment is taken into account, such as when land owners in case of rejection of the party on the grounds that they lack the capacity of the case for decision, the plaintiff was corrupted by reason of the special counsel and by the court of appeal of the previous decision stand dairec shown above was one.
The decision to resist was appealed by the deputy plaintiff.
A dispute that has come before the General Assembly of the Law through resistance; the parties to the case, the subject and the reason are the same Muğla 2. 17.01.2013 day of the Civil Court of First Instance and 2009/655 E., 2013/33 K. whether the numbered decision will be considered a final decision in terms of the case at hand; whether there is a mandatory dec friendship between the owner of the land and the contractor in terms of the claimant’s request for the collection of the fair value of the real estate left to the contractor in accordance with the construction contract in exchange for the transfer of a share of the land is collected at the points dec dec There is a friendship between the owner of the land and the contractor.
From the point of view of disagreement on the final decision:
In order to resolve the dispute, first of all, it is useful to focus on the institutions and concepts of “case requirement” and “final judgment”.
The terms of the case are the elements necessary for the court to make a judgment on the merits of the case. In other words, the terms of the lawsuit are mandatory conditions related to public order, which are sought not for the court to open a lawsuit, but for the court to enter into the merits of the case.
The court spontaneously investigates and examines whether there are conditions for litigation both on the day the case is filed and at each stage of the proceedings, and is not bound by the requests and statements of the parties in this regard. If the terms of the case are not available on the day the case is filed, or if it is found out that one of these terms has disappeared at the trial stage, the case should be dismissed by the court on the grounds that it is not available for hearing.
114 of the Code of Civil Procedure No. 6100. article “(1) The terms of the case are:
a) The existence of the right of jurisdiction of the Turkish courts.
b) The judicial way is permissible.
c) The court is in charge.
d) In cases where the authority is final, the court is authorized.
d) The parties have the license of the party and the case; in cases where legal representation is involved, the representative has the necessary qualifications.
e) Having the right to pursue a case.
f) In cases pursued through a proxy, the proxy must have a power of attorney for the case and have a duly issued power of attorney.
g) The expense advance that the plaintiff must deposit has been deposited.
d) Fulfillment of the requirement of the decision on the presentation of collateral.
h) The plaintiff has a legal interest in filing a lawsuit.
i) The fact that the same case has already been filed and is still being considered.
i) The fact that the same case has not previously been conclusively ruled on.
(2) The provisions on the terms of the case contained in other laws are reserved.”
it contains the provision. Accordingly, some of the conditions of the case are positive (they must exist at the time of the opening of the case), and some are negative (they should not be present at the time of the opening of the case).
It is also a condition of the lawsuit that the dispute subject to litigation has previously been resolved with a final provision (Article 114/1-i of the Civil Procedure Code (HMK) No. 6100). This condition is called the negative case condition.
The final provision establishes a determination in the legal situation (both for individuals and for the state). Since legal security and trust in the judicial system are ensured by this, the final decision is directly related to the public interest.
It should be noted immediately that the purpose of the final provision is to resolve disputes between persons both at the moment of decisionization and for the future. In the realization of this goal, both the parties to the case have the benefit of both the State and society. Because people use all their possibilities during the case to decisively conclude the dispute between them, and they want this dispute to end with a decision to be made as a result of the case. The State also has a benefit in this. Because the State does not want the courts to be engaged in the same dispute over and over again indefinitely ( Arslan, R./ Yilmaz, E./Taşpınar Ayvaz, P.: Civil Procedure Law, Ankara 2016, p.664).
If there is a final decisiveness on the dispute subject to litigation, a new case cannot be filed on the same issue between the same parties and based on the same cause of action.
An objection to a final verdict can be raised at any stage of the case, and the court must also take into account the existence of a final verdict at each stage of the case and reject the case on the grounds that there is a final verdict (in the absence of a case requirement). Again, even if the objection to the final decision has not been put forward in court, it can be put forward for the first time in the Supreme Court (at the stage of appeal or decision correction) and, moreover, after the overturning, and it has an absolute effect that does not depend on the will of the parties. Therefore, the fact that the existence of a definite provision has not been taken into consideration in one part of the trial does not prevent it from being considered in another part (Kuru, B.:Civil Procedure, 6. Edition, 2001, C. V, p. 4980 et seq.).
In this context, the conclusive evidence is the evidence that binds the parties and the judge and requires that the event proven by such evidence be accepted as legally correct. the judge has no discretion over the exact evidence. He must accept the fact proven in this form as true.
In our law, the exact evidence is limited and these are promissory notes (HMK. m.205), oath (HMK. m. 229), and is the definitive provision (HMK. m.303). The final judgment also constitutes the final evidence in the case filed later on the same subject (Kuru, C. II, p. 2034 et seq.). It is divided into two parts: a definite provision in the sense of a definite form of provision and a definite provision in the material sense.
In this sense, the final decision means that all the usual avenues of law have now been closed against the aforementioned decision. Some final decisions are final as soon as they are made (HMK. m. 361).A decision that is open to the law is also final after the deadline for applying for the law has passed. On the other hand, if a decision that is open to appeal is appealed and ultimately upheld and the decision correction period has been passed, or if the decision has been corrected and this request has been rejected or the application has been waived by the law, the decision will be finalized in the sense of the form of judgment given. If a provision is finalized in this sense once, ordinary legal remedies cannot be applied against this provision anymore. In order for a decision to be finalized in a material sense, it must first be finalized in a financial sense.
The conditions of the final provision in the material sense are 303/1 of HMK No. 6100. it is described in the article. Accordingly, “In order for the provision that has been finalized in the sense of the form of one case to constitute a material final provision in another case, the parties to both cases, the reasons for the case, and the provision paragraph of the first case and the result of the claim in the second case must be the same.”.
The first condition of the final decision is that the parties to both cases are the same persons, the second condition is that the duration is the same, and the third condition is that the cause of the case is the same.
The second condition of the final decision is that the rights granted to the subject of the lawsuit are the same. In order to understand whether the provisions (subjects) of the previous case and the new case are the same, the judge must compare the provision paragraph of the decision made in the old case with the result of the request put forward in the new case. Even if the material things that are the subject of the old and the new case are the same in physical terms, if the rights claimed for these things are different, it cannot be said that the terms are the same.
The third condition of the final judgment is that the cause of action is the same. The reason for the lawsuit, unlike the legal reason, are the cases on which the plaintiff bases his case. If the material cases (events) on which both cases are based are the same, then if there are other two conditions, the existence of a final verdict can be mentioned.
As a matter of fact, the same principles were adopted by the General Assembly of Law 2010/1-602 E. 2010/643 K. it is also emphasized in the numbered hymn.
The final decision primarily binds all other courts (including the court that made the decision). To put it more clearly, the courts are bound by the judgment given on the same issue by the same parties on the basis of the same cause of action; they cannot (re) examine the same dispute again (objection to the final judgment) and in a new case on the same issue, they are bound by the final judgment given in the previous case (Kuru, C. V, p. 5051- 5053).
As a rule, the final judgment is exclusive to the provision paragraph and does not affect the justification. However, if the justification consists not only of legal and logical tests and invasions (judging by the evidence) made by the court to reach a decision, but also has an impossible commitment to be separated by the paragraph of the judgment, it is necessary to accept that this part is also included in the final judgment, except for the exception. Which justification strictly adheres to the provision paragraph is determined by the specifics of each event.
As for the evaluation of a concrete event within the framework of the principles described; the court is ambiguous 2. 17.01.2013 day of the Civil Court of First Instance and 2009/655 E., 2013/33 K. it has been accepted that the numbered file constitutes a final judgment in terms of the case at hand. However, the subject of both cases is the construction contract for the land share, and in cases filed on the basis of the construction contract for the land share, there is no uniformity between the subject of the previous case and the subsequent case, given that construction is ongoing and the level of construction may constantly change, and the provision made in the previous case does not constitute a decisively decisional provision for the next case.
As such, there are no irregularities in the plaintiff’s request for cancellation and registration of the title deed with a new lawsuit. Then it is not right for him to resist the court’s decision to cancel the title deed and reject the registration request on the grounds that there is a final provision.
As for the dispute related to compulsory case friendship, it is;
First of all, it should be noted that in order for a lawsuit to be filed by more than one person or against more than one person, there must be a legal connection between those involved in the same dec. In our law, this connection is found in the institution of “litigation friendship”. Litigation friendship is examined under two main headings: compulsory and discretionary. Compulsory litigation friendship is also organized with a dual distinction, both material and formal in itself.
The right that is the subject of a lawsuit is common between more than one person, and the court should decide about this legal relationship in the same way for all interested parties and in cases where a single decision needs to be made, it must be recognized that the friendship of a lawsuit is financially obligatory. In other words, in cases where the use of one right by more than one person together or against more than one person is mandatory, more than one person related to that right is a mandatory litigant when that right is the subject of a lawsuit. In what cases the friendship of the case is obligatory, it is determined by material law. In compulsory case friendship; since the relationship between the friends of the dec is very tight, they have to act together in the case. The court, on the other hand, will make the same and single decision about all of the compulsory case friends at the end of the case. In compulsory litigation, the right that is the subject of a lawsuit is unique and there is no limit to the number of litigants.
In some cases, more than one person in a lawsuit against the law even though it is not a financial necessity, the truth to come out better and be attached to the outcome of the legal relationship between the parties to enable them to be true that necessitated duly filed against more than one person in respect of shape, in which case the mandatory-Litigation Partners. In such a case, there can be no mention of the fact that a single decision has been made on the case friends or the existence of an obligation for the case friends to act all together and in the same way.
In addition to these mandatory case friendship situations described, the case friendship is old. 59 of the Civil Procedure Code No. 6100 (HMK) entitled “Friendship of Compulsory Cases”. according to its article; “(1) According to material law, in cases where one right must be used together by more than one person or brought forward together against more than one person and a single provision must be made about the whole, there is a compulsory litigation friendship.”
there is a provision.
In this case, if the rights and obligations subject to litigation explicitly mentioned in the article are common, more than one person is in debt by a common transaction (for example, a contract), if the case was born for the same (or similar) reason about more than one person, more than one person can be sued together, as well as against them together.
Considering the concrete event in the light of all these explanations; the plaintiff requested the cancellation of the title deed and registration, and the collection of the housing value from the defendants if this is not possible. The basis of the plaintiff’s claim for compensation is the assignment of the contractor to the plaintiff by a simple written contract. The plaintiff, who claims that the right has been transferred to him, must prove to the landowner (dector) that the contractor has performed his job, in other words, he has the right to claim the personal right. Therefore, it is necessary to accept that there is a mandatory friendship of dec between the contractor and the dec of the land plot.
As a result, while a conclusion should be reached by entering the merits of the work by the local court, it is not correct to decide that the claim for receivables filed against the contractor should be decoupled from this case and the case filed in terms of the owner of the land should be dismissed in due course with the contrary opinion.
In this case, the decision of the local court to overturn the Special Chamber adopted by the General Assembly of the Law must be followed, while resisting the previous decision is contrary to the procedure and the law.
For these reasons, the decision to resist must be overturned.
CONCLUSION: It was decided unanimously on 20.12.2017 that the decision of the plaintiff’s deputy to resist with the acceptance of appeals would be OVERTURNED for the reasons shown in the decision of the Special Chamber to overturn, that the fee in advance of the appeal should be returned to the depositor upon request, and that the way to correct the decision within a fifteen-day period would be open.
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