General Assembly of the Law 2017/503 E. , 2017/1190 K.
“Text Of Jurisprudence”
COURT : Commercial Court
At the end of the trial held due to the actual, decoupling and reciprocal “receivable” case between the parties; Kadikoy 3. The main case of the Commercial Court of First Instance is 1.735.262,82 TL. 27.12.2011 days and 2005/421 E. The decision was made on the acceptance of the application, the rejection of the counterclaim, and the combined case that was not followed by the parties was deemed to have not been filed-2011/882 K. upon request of the numbered decision by the defendant-counter-plaintiff cooperative deputy, the Court of Cassation 15. 16.01.2014 day and 2013/4701 E of the Legal Department. 2014/354 K. by his numbered decision;
“…The main case concerns the determination of the unfairness of the termination made by the defendant business owner cooperative and the decision to collect the balance work price; the counterclaim relates to the requests to collect the amount of overpayment to the contractor company and the amount of incomplete and defective work and compensation, and the combined case filed by the contractor company relates to the requests to collect the amount of excess work done outside the contract. The decision made by the court that there is no room for the acceptance of the original case taking into account the amount increased by reclamation, the rejection of the counterclaim, the establishment of a provision on the merits of the merged case was appealed by the defendant and the counter-plaintiff business owner cooperative.
Dec October 1994, the “Housing Construction Agreement” dated 02.02.1994 and the “Housing construction agreement dated 02.02.1994″ dated 12.07.1997 between the parties are additional agreements.”ordinary written contracts have been issued and these contracts are subject to Article 355 of the Code of Obligations No. 818. it is a work contract defined in accordance with the article.
In October original case, the plaintiff contractor company stated that it had performed its performance in accordance with the provisions of the original and additional contract, that the defendant cooperative had terminated the contract unfairly after completing the construction subject to the contract by 95%, and requested that the balance of the work be decided by determining the unfairness and invalidity of the termination. In order for the contractor to be entitled to the cost of work, he must carry out the construction in accordance with the contract, plan and project, zoning legislation and technical rules and deliver it to the business owner. In the concrete case; the expert report dated 02.06.2008 received by the court stated that “the buildings subject to the lawsuit are in a state of illegal construction, as there are no architectural, static, plumbing, heating and thermal insulation projects approved by the municipality, as well as construction permits approved by the municipality,” the buildings subject to the lawsuit are in a state of illegal construction. 21 of the Zoning Code No. 3194. in accordance with Article 26. it is mandatory to obtain a building permit for all structures, with the exceptions listed in the article. The necessary conditions for issuing a license are laid down in Article 22 of the Zoning Code. it is shown in the article. If there is no provision in the contract to the contrary, the obligation to obtain a license belongs to the business owner. October 30, 3194 of the Zoning Code, since it is not decided that the decisiveness of obtaining a building permit belongs to the contractor in both the original and additional contract between the parties. in accordance with the provision of the article, the act of obtaining a building permit belongs to the cooperative that owns the business. Construction that is not carried out in accordance with the license obtained before the license is obtained or even if the license is obtained is defined as “illegal construction”. According to the established practice and case law of our Department, the structure made contrary to the provisions of the Zoning Code No. 3194, which includes the rules of compulsory law, does not express economic value unless it is made legal because it is a “runaway structure”. Because it is not of economic value, the contractor cannot ask for the cost of this type of work and production. However, if the work is made legal, the contractor may claim the work price he deserves.
In these circumstances, the first defendant are within the scope of the owner of the business since the Cooperatives Act of making and building permits can be obtained so that the legal construction business owner sufficient time and authorizing the cooperative; the cooperative’s get building permits and construction in the case of making it legal for the same reason, the contractor company and the appropriate authorization to be given time to be given to the appropriate authority and are not regulated despite the time when that wouldn’t be talking about the economic value of the construction, the contractor filed by the decision of the denial of the original trial must be given.
If the construction is made legal, Uskudar Public Prosecutor’s Office’s indictment dated 11.09.2006 and many defendants, including contractor company officials and cooperative officials, are charged with embezzlement and abuse of office within the scope of the file Uskudar 2. It is understood that a public case has been filed in the file of the Heavy Criminal Court registered with the base number 2006/272 and this case is still a matter of concern. 53 of the Code of Obligations No. 818. according to the article, material facts that are subject to criminal proceedings bind the civil judge. In other words, it is clear that material cases that end in a criminal case will be taken into consideration in a civil case. The finalized determination of the criminal court on the material facts related to the determination of the incident subject to dispute, in other words, the existence of the incident and the fact that it was committed by the defendant, also constitutes a final judgment in the civil court on the same issue. Therefore, since the results of the criminal case under consideration will affect the civil case subject to appeal, the court will wait for the outcome of the case being tried at the Uskudar High Criminal Court, after the decision on the criminal case is finalized, the material facts and all the evidence collected in the criminal case will also be evaluated, and an expert panel of 3 people who will be assigned to find out the truth will be made in the neighborhood with an expert team, it is necessary to receive an audit-friendly and justified report and determine the amount of the work price that the contractor deserves within the framework of the result that will occur.
It was not correct to make a decision in writing with incomplete examination without focusing on the issues described, the decision had to be overturned…”
at the end of the retrial, the file was transferred to him (the file was transferred to him) in Istanbul Anadolu 4. The previous decision was resisted by the Commercial Court of First Instance.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
By examining the law at the time of decision has been appealed by the General Assembly to resist it been understood that this law should be applied from the date of the decision of 1086 438 of the second paragraph of the provision in accordance with attorneys to appeal the decision and request a hearing on the lawsuit the plaintiff who do not noble, it shall be dismissed and the combined file after you have discussed the need to read the papers was:
The main and counterclaims and combined cases are related to requests for collection of receivables arising from the work contract.
The plaintiff’s attorney with his client according to the agreements concluded between the original and the additional defendant, the defendant belonging to deliver by doing construction on a plot of the number of independent sections that would start to be used said, but part of the price paid by the defendant whether the defendant has been made by yanc setting forth the determination of invalidity and termination of injustice, the balance of the price of merit 1.744.650,73 TL receivables, without prejudice to the rights of the surplus and the demand on the case for now 60.000,-TL rediscount interest you commit to the process and the decision to buy the collection with demand and has prosecuted.
In the merged case, the receivables related to the additional works performed (at the time of the october of the current case) have been the subject of a lawsuit.
The deputy plaintiff has increased the case value to TL 1,735,262.82 with the correction of 28.10.2010 days.
The defendant’s deputy said that the plaintiff could not complete the construction within the time he had committed, that the building was not in compliance with the General Specification of Public Works, that additional costs should be incurred to fix this problem; the plaintiff’s failure to fulfill the responsibilities of the cooperative tax and other legal due to the financial burden that was brought, the defendant, through processing between the managers of the cooperative with the authorities of the former client, actually 1.300.000,-TL has already been issued and paid more if you have found that around the previous administration, also has started criminal proceedings against those concerned, if at the end of the period of notice given to correct the deficiencies on the opposite side of that upon the termination of the contract upon failure to fulfill the act, the temporary and final acceptance and final accounts were not made to, stating that the introduction of independent sections will not mean surrender, he asked for a decision to dismiss the case;
In his counterclaim, he requested and sued that the collection of the 1,300,000,-TL portion of the overpayment made to the plaintiff, which is currently around 10,000,-TL, be decided.
Taking into account the productions made by the plaintiff and the defendant’s payments by the court, the actual case is 1.735.262,82 TL. acceptance of the application, rejection of the counterclaim, and the merged case that has not been followed by the parties has been removed from the process (HMK.m.150), the decision that there is no place for the establishment of a judgment on this case was overturned by the Special Chamber on the appeal of the defendant-counter-plaintiff’s attorney on the grounds shown above, and it was decided that there is no place for the examination of other appeals for the time being.
The court resisted the previous decision on the grounds that the plaintiff contractor had no obligation to obtain a license, that the plaintiff had completed and delivered the work, thus fully performing his performance arising from the contract was uncontested, and that the outcome of the criminal trial after this stage would not affect the case at hand.
The decision to resist has been appealed by the defendant-counter-plaintiff’s deputy.
The resistance path from the front of the conflict with the General Board of the law; in accordance with a contract of work in terms of structure a concrete event of the obligation to the license of the contractor or you are a business owner, this deficiency can be remedied, and whether the price of demand and cooperative managers and whether it can connect to the plaintiff the authority of the company’s ongoing criminal proceedings at the points of whether to have any influence in the hands of the file are collected.
The plaintiff of the original and merged file is… Zoning Inş. Taah. Tic. Ltd. the contractor, the defendant and the counter-plaintiff…. The Akören Housing Construction Cooperative is the land owner. dec. Dec October Dec0, 1994 and dated 12.07.1997, additional works contracts were concluded between the parties, with which the contractor undertook to build a building on the land for a fee.
A contract in which the contractor undertakes to create and deliver a work in exchange for a price that the business owner owes to be paid is called a “work contract” (Eren, F.: Special Provisions of the Law of Obligations, 2.b., Ankara 2015, p.584; Selimoğlu, E.: Istisna -Eser- Convention, Ankara 2010, p.1).
As the definition implies, a work contract is a contract that imposes debts on both parties. The principal debt of the contractor arising from the contract is to create a work and deliver it to the business owner (818 p. TALK.m.355; 6098 pp. TBK.m.470). The work that has been created and delivered to the business owner must be “shameless”. The law has not given a clear definition of shame. However, he made a ranking about the weight of the shame. According to the law, it distinguishes the work from being “…defective to the extent that the business owner cannot use it or be forced to accept it as a matter of fairness” from being “repaired if it does not require excessive expenses” (818 p. TALK.m.360/I-II; 6098 pp. TBK.m.475/1-3).
According to the definition adopted by weight in the teaching; It is accepted that the work is defective if the work created does not carry the qualities specified in the contract or lacks the qualities that should be present in the work according to the rule of honesty (Eren, p.634; Turanboy, A.: According to the Decisions of the Supreme Court, the Liability of the Contractor Arising from Deficiencies and Defects in Construction After Delivery, AUHFD., C.XLI (1989-1990), P.1-4, s.157 et seq.; Canpolat, F.: In the Exclusion Agreement, the Rights of the Business Owner Arising from the Monopoly against Shame, Ankara 2009, p.65).
Both in teaching and in practice, shame is classified as material, legal, economic and aesthetic shame. In this classification, it is useful to focus on ”legal shame”. On the issue of legal impropriety, it is the presence of limits that prevent the buyer from taking advantage of it or saving on it, affect the value of the goods or the expected benefit from it, and usually arise from public law (Aral, F./Ayranci, H.: Law of Obligations Private Debt Relations, 10.b., Ankara 2014, p.119; Coffeehouse, N.: Return of the Consumer from the Contract Due to Defective Goods in the Sale of Movable Property, Ankara 2014, p.9).
As a matter of fact, in accordance with Article 21 of the Zoning Code No. 3194, it is necessary to obtain a building (construction) license for all structures covered by this Law. According to the Article 22 of law, building owners to get building permits for the offices of the mayor or the governor of first instance must be filed with the petition or legal; the only petition the deed (in exceptional cases will take the place of the deed, document), architectural design, structural design, electrical and plumbing projects, pictures and accounts, or otherwise roperli to be added to the sketch size is required. If the building is unlicensed or built in violation of the license and its annexes and cannot be made in accordance with the license, the building must be demolished (Zoning K Octoberm.32). In addition, administrative sanctions related to unlicensed structures are also applied (m.42).
It should be noted immediately that the provisions of the Zoning Code are related to public order and are observed by the courts and the Supreme Court of Cassation.
From a combination of the provisions of decency in the work created and the articles of the Zoning Code, it is concluded that even if the unlicensed structure is complete in a physical (material) sense, it will be considered legally defective and the contractor’s responsibility arising from the decency may be transferred.
On the other hand, in the face of the contractor’s obligation to create and deliver a work, the performance that the work contract imposes on the business owner is “paying the price” (818 p. TALK.m.355; 6098 pp. TBK.m.470).
In contracts involving mutual actions, unless there is a right to perform them later according to the terms or the nature of the contract, the party requesting the performance of the contract must first have performed its debt or proposed its performance (818 p. TALK.m.81; 6098 pp. TBK.m.97). In the work contract, it also depends on the condition that the contractor asks for payment of the price, delivers the work without shame, or informs that he is ready to do so. The business owner cannot be forced to hand over the defective work; in this case, the business owner’s obligation to pay the price will also not be muaccel. The business owner can avoid payment until the shame is eliminated (Baygın, C.: According to Turkish Law, The Fee and the Provisions to Which It is Subject in the Exclusion Agreement, Istanbul 1999, p.193-194).
In terms of the work contracts, the subject of which is construction (building construction), it is necessary that the building complies with the contracts and annexes, science and art pedestals, approved project, license and other zoning regulations; otherwise, it will be concluded that the work is defective and in this case the contractor will not be entitled to the cost october the work.
The obligation to obtain a building permit, unless otherwise agreed in the contract, belongs to the owner of the work (dec); the fulfillment of this obligation cannot be expected from the contractor. However, a competent contractor who has the title of a prudent businessman should also not start construction and maintain it without a license and project. If the contractor has acted contrary to this principle, in other words, if he has completed the building without obtaining a license and the necessary permits, he will not be entitled to the cost of work. In such a case, the contractor’s right to the cost of work, if possible, depends on the elimination of project and license deficiencies. In the same way, the business owner cannot ask for the cost of eliminating existing deficiencies and defective works in a construction that does not have a project and license.
Looking at the concrete event;
In the response letter of the Uskudar Mayoral Directorate of Reconstruction, it was stated that there was no project for the real estate subject to litigation; in the letter dated 30.09.2014 and numbered 6215-6311 of the same unit, it was reported that there was no real estate-related zoning parcel, so no zoning application could be made and numerous building holiday records were kept about the construction. Uskudar 5, which is also in the file. 2004/55 of the Court of First Instance d. Business identified in the expert report dated 19.10.2004 to a numbered file with the opinion held by bilirkisilerce 02.06.2008 prepared in the case referenced in the blog, the report also involved in the case by the municipality approved the construction of architectural, structural, plumbing, heating and thermal insulation project, the absence of” an unlicensed and situation of the building in the case of “illegal construction” it is stated in nature that are. The contractor also does not have a claim that he has a project and building permit (construction permit).
Considering the dec described above and the concrete event together, it is indisputable that the contractor cannot ask for a work price due to construction that is not licensed in principle when evaluated together. However, in the recent october of the Supreme Court of Cassation, taking into account that the decision to dismiss the case for this reason causes the contractor’s victimization, the court should first ask the relevant administrations if it is possible to make the construction made without an approved project and building permit in accordance with the zoning legislation and determine with an additional report from an expert; after carrying out this research and examination, it was realized that it would not be possible to connect the building to the project and license in any way, in such a case, it was taken into account that the building that should be demolished has no economic value, and the rejection of the case regarding the manufacturing cost filed by the contractor is necessary. It is determined that the legalization of the building is possible (in case the obligation to obtain a building permit belongs to the business owner as) primarily business owner and a construction should be given the necessary time to prepare projects baglatmas license, but it’s being able to supply this requirement if the contractor fails to comply with the building if it is made legal and the contractor should be given to the fabrication of otherwise ask for the price it should be considered whether you could ask for.
As for the decision to overturn and resist the decision to make the file on criminal proceedings a pending matter if the construction is made legal in terms of the counterclaim;
At this point, it is useful to first focus on the impact of criminal court decisions on the civil case, in other words, on which decisions of the criminal court will bind the civil courts:
The effect of criminal court decisions on the civil court (case), in our law 6098 p. Article 74 of the Turkish Code of Obligations (818 p. TALK.m.53) it has been regulated and the civil judge has been made independent in principle in the face of the finalized decisions of the criminal court. This principle is based on the fact that the criminal rules provide for the sanction of a ban in the public interest, and the legal rules covering the same dispute provide for the regulation of personal relations in the field of civil law and, in particular, the conditions for compensation.
6098 pp. Article 74 of the Turkish Code of Obligations regulating this issue:
“When a judge makes a decision about whether the person who caused the harm has a defect, has the power to distinguish it, he is not bound by the provisions of criminal law on liability, nor is he bound by the acquittal decision issued by a criminal judge.
In the same way, the decision of the criminal judge on the assessment of the defect and the determination of the damage does not bind the civil judge”amir.
There is no hesitation that the principles such as the acquittal decision issued by the criminal court, the defect and its degree, the amount of damage, the power of appeal and the ability to be imposed, the nationality will not bind the civil judge in the face of this clear provision.
It should be noted right away that this independence of the civil judge described above is not unlimited. It is accepted that both in the teaching and in the established jurisprudence of the Supreme Court, the criminal judge will be fully connected with the material events identified, and in particular with the issue of “illegality of the act”, the civil judge. In other words, the decision of the criminal court, which determines the material events and the existence of prohibited acts, is the final evidence from the point of view of the parties (HGK., 10.01.1975 days and 1971/T-406 E., 1975/1 K.; 23.01.1985 days and 1983/10-372 E, 1985/21 K; 27.04.2011 days and 2011/17-50 E, 2011/231 K; day of 03.04.2013 and resolutions of 2012/19-873 E, 2013/433 K).
The procedure of civil proceedings is a form of jurisprudence. Certain restrictions have been imposed in order to conclude the trial quickly, such as the opening of the case, the filing of objections, the reporting of witnesses and other evidence, the inability to provide a second list of witnesses, as well as the prohibition on expanding the claim and defense, depending on the conditions of a certain period of time. As a result, the form of a judge of law will seek the truth, material truth will not be the primary goal. However, the criminal judge, on the contrary, will try to achieve the material truth as the primary goal. In that case, Article 74 of the Turkish Code of Obligations does not constitute an obstacle to the finalized provision of the criminal court establishing the connection of material causation (illiyet) binding the legal judge (Çenberci, M.: Final Judgment in Civil Cases, Ankara 1965, p.22 et seq.; also HGK., 16.09.1981 day 1979/1-131 E., 1981/587 K.; 27.04.2011 day and 2011/17-50 E, 2011/231 K; 03.04.2013 day and 2012/19-873 E, decisions No. 2013/433 K).
The decision of the criminal court on the determination of a material phenomenon in accordance with the established practice of the Supreme Court and the general acceptance in the teaching binds the civil judge. Despite the well-established acceptance in the criminal court of the existence or absence of a material event, it is not possible to re-discuss the same issue in the civil court.
Considering the concrete situation in the light of all these explanations;
Uskudar 2. (now Istanbul Anatolia 6.) 2006/272 E of the High Criminal Court (before overturning it). the decision made at the end of the case filed with the name “embezzlement and misconduct” in the file registered in the number of the Supreme Court 5. 04.12.2012 day of the Criminal Department and 9570/2010 E., 2012/12454 K. with the numbered decision, some of the defendants, including the defendant cooperative managers and plaintiff company officials, were disrupted for research purposes. It is understood that the case referred to in this form is still a matter of concern. It is indisputable that the decision made at the trial after the cancellation will affect the receivable case at hand. In this case, waiting for the outcome of the case that is being tried in the Heavy Criminal Court, after the decision to be made in the criminal case is finalized, the material facts and all the evidence collected in the criminal case will also be evaluated and a 3-person expert team of experts will be assigned to reveal the truth with a reconnaissance at the scene, convenient control and a reasoned report to be taken and in this way ensuring the elimination of contradictions between the original and the additional reports and additional reports (by HMK.m.281) within the framework of the result that will be formed, it is necessary to determine the amount of the work price that the contractor deserves.
Finally; the merged case is considered to be unsolved (HMK.m.150) although the decision was made “…1.500,-TL, which is appreciated for the defendant’s deputy. the provision established in the form of taking the power of attorney fee from the defendant and giving it to the plaintiff,”is also contrary to Article 326/1 of the Code of Civil Procedure and required to be overturned.
According to the explanations made above, while the decision to overturn the Special Chamber adopted by the General Assembly of the Law should be followed, it is contrary to the procedure and the law to resist the previous decision.
Therefore, the decision to resist must be overturned.
RESULT: Defendant-plaintiff’s counsel on appeal against the decision to resist the adoption of a private cooperative of Appeals decision in the circle of 1086 429 of Law pursuant to this article for additional reasons shown above CORRUPTION, upon request, in advance of provision for the correction of Appeal decision to open the back of tuition 14.06.2017 way she tucks on the day it was decided unanimously.
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