The party’s license in a case is based on the terms of the case (HMK m. 114/1-d), and the party’s license is possible by having the license to benefit from civil rights (HMK m. 50). The enjoyment of civil rights, that is, the license of rights, begins at the moment of falling into the mother’s womb, provided that the birth is complete and right, and continues until the person’s death. Therefore, the personality of natural persons and the license to enjoy civil rights end with death
because of this, the deceased person’s license to be a party in the case disappears, and his representation is also unthinkable.(TBK m. 513) Because the objective legal capacity is that a person conducts a case on his own behalf personally or through a representative appointed by his will and performs procedural procedures related to it (TMK m. 28). For this reason, heirs do not have the opportunity to file a lawsuit due to rights that are not included in the inheritance and cannot be legally transferred to heirs after death.[1]
55/1 of the Code of Civil Procedure dated 12/1/2011 and numbered 6100. the substance of; According to the provision “In the event of the death of one of the parties, if the heirs have not accepted or rejected the inheritance, the case will be postponed until the deadlines set by law have passed in this regard, however, the judge may decide to appoint a trustee to follow up the case on request, in cases where it is inconvenient to delay”, if one of the parties dies during the trial, the deceased party’s license will expire, it is not possible for the deceased person or, as a rule, his surrogate to continue the case, and only by the heirs of this person, if the subject of the lawsuit is related to the deceased’s assets and the decision to be made at the end of the lawsuit affects the rights of the heirs in a positive or negative way, the case may be continued. In this case, the heirs of the deceased party who do not reject the inheritance should follow the case together as compulsory litigants. However, there is an explanation that this provision does not need to be applied in cases that do not pass to the heirs and are left uncontested by the death of the party.[2]
However, filing a lawsuit against a dead person with the death of one of the parties during the lawsuit contains different results, so filing a lawsuit against a dead person with the death of one of the parties during the lawsuit is discussed in separate headings below.
The Death of One of the Parties During the Trial
According to the Turkish Civil Code, inheritance opens with death, and the right of heirs to inherit is born from this moment and becomes legally guaranteed. Except in cases clearly written in the law, all receivables, rights and property of the deceased are transferred to his heirs. In this case, since all rights, property and debts belonging to the deceased other than those clearly written in the laws will pass to the heirs, it is possible for their heirs to pursue these cases, as the rights that turn into the property of the deceased by filing a lawsuit will also form part of the deceased’s assets. In other words, the right of follow-up passed to the plaintiffs also includes cases that are likely to turn into a right in the future. Because the case is within the scope of the concept of ”right”. For this reason, the right to sue, like other rights, is transferred to the heirs with the death of the muris.
TMK’s 605. in the first paragraph of the article “Legal and appointed heirs may reject the inheritance.” the inheritance of legal and appointed heirs in accordance with the provision of Article 606 of the TMK. the first paragraph of the article “Inheritance may be rejected within three months.” according to the provision, they can refuse within three months, this three-month process is a reduced period of rights, this period will start on the date they learn about the death of the inheritor, the appointed heirs will start processing from the date when the bequeather’s savings are officially notified to them.
Article 55 of the Code of Civil Procedure No. 6100; ”If one of the parties dies in the event of the death of one of the parties, if the heirs have not accepted or rejected the inheritance, the case will be postponed until the deadlines set by law have passed in this regard, however, the judge may decide to appoint a trustee to follow up the case on request, in cases where delay is inconvenient,” in accordance with the provision, if one of the parties dies, the deceased’s party license expires, in this case cases involving the deceased’s heirs, affecting the heirs’ property rights, as well as cases affecting the heirs’ property rights, the heirs of the deceased party who do not reject the inheritance should follow together as compulsory litigation companions.[3]
Therefore, the right to continue the case will be in question if the inheritance is not rejected by the legal and appointed heirs within a 3-month period. However, 6 of the ECHR. according to the ”Right to legal hearing” with the indication of the right to a fair trial contained in the article, heirs should be heard by the court and given the opportunity to put forward all kinds of claims and refute counterclaims.
Because in a decision of the Court of Cassation; “27 of the Code of Civil Procedure No. 6100. “The right to legal rest” is regulated in the article. Accordingly, the parties to the case have the right to information, disclosure and proof related to the trial. As explained in the justification of the article, this right is granted by Article 36 of the Constitution. in Article 6 of the European Convention on Human Rights. it is the most important element of the right to a fair trial regulated in the article. This right, also known as the right of claim and defense, is the right of the parties to the trial
it obliges them to have full information, to be able to use their right to disclosure and proof fully and equally, and for judicial bodies to evaluate and make decisions as necessary by taking these explanations into account. The judge cannot make his decision without listening to the parties or inviting them to exercise their right to explanation and proof in accordance with the law.”[4] it is said, again in another decision; “It is understood that the defendant passed away during the trial phase, after the opening of the case, but before the verdict. By the court, with the determination of the heirs to the plaintiff, Article 124 of the CCP. in accordance with the article, a period should be given for their inclusion in the case, the evidence shown by the heirs included in the case should be collected, and judgment should be established according to the result to be obtained.”[5] it is stated that the formation of a party is a condition of litigation, the formation of a party is important not only at the opening of the case, but also at other stages of the trial, therefore, at each stage of the case, the court should be considered ex officio and the court should notify the heirs of the deceased party to automatically notify the parties of the petition and the day of the hearing and ensure the formation of a party.
In the event of the death of one of the parties during the case, there may also be differences in the ways to be followed depending on whether the deceased party is a plaintiff or a defendant, the type of case and the stage reached in the casIn the event of the death of one of the parties during the case, there may also be differences in the ways to be followed depending on whether the deceased party is a plaintiff or a defendant, the type of case and the stage reached in the case. For example, in a decision of the Supreme Court, a plaintiff who died during the case, established a provision that “the court should duly notify the plaintiff’s heirs to ensure that heirs who do not rejFor example, in a decision of the Supreme Court, a plaintiff who died during the case, established a provision that “the court should duly notify the plaintiff’s heirs to ensure that heirs who do not reject the inheritance participate in the case as mandatory litigants, and if the heirs refrain from following the case together, the trial should continue after the condition of being a party by appointing a trustee to the inheritance company”.[6]
However, if the defendant is deceased, the case is continued jointly against all of the defendant’s heirs. In this case, the day and time of the hearing should be notified by the court to the legal heirs of the deceased plaintiff. In this case, the court’s job is to notify the heirs by notification that they should always follow the case together, or if the sole heir is to follow the case, the heir who will follow the case should get the approval of In this case, the court’s job is to notify the heirs by notification that they should always follow the case together, or if the sole heir is to follow the case, the heir who will follow the case should get the approval of the others, or if the inheritance company is to follow the case through a representative to be appointed to the inheritance company, and to conclude the case by continuing to judge according to whichever of these situations occurs.
In terms of the type of case and the stage reached, explanations have been made with examples below. For example, if one of the parties in administrative proceedings loses his life while the case is ongoing, Article 55 of the CCP. in accordance with article 26 of the Administrative Trial Procedure Law No. 2577, heirs will be able to continue the case; this rule. it is arranged in a special way in the article.
26 of the Administrative Trial Procedure Law No. 2577. In the article; “1. If there is a change in the personality or nature of the parties due to death or any reason during the case, the right to p26 of the Administrative Trial Procedure Law No. 2577. In the article; “1. If there is a change in the personality or nature of the parties due to death or any reason during the case, the right to pursue the case is decided by the relevant court until the person who passed to him applies; in case of the death of a party who is one of the natural persons, the file is removed from the process until the administration renews the pursuit against the heirs. If the renewal petition has not been submitted within four months, the decision to stop the execution, if any, shall automatically become null and void. 2. Petitions related to cases involving the deceased alone are canceled.” the provision has been included in the provision that the right of follow-up for cases other than cases involving the deceased alone can be transferred to the heirs; but it has not been specified which types of cases these cases are.
In a decision of the Council of State; Paid payable to the plaintiff in 1956 in exchange for the cotton given to the two dam shares, since the bet has not been paid to him since 1957, the lawsuit was filed with the request that the amount to be calculated from this date be paid together with the legal interest, at the appeal stage, when the population registration sample taken from the UYAP Integration system was examined, it was understood that plaintiff K1 died on 30.4.2013, and in the dispute under consideration, the right to the alleged receivables will be transferred to the heirs legally.“The plaintiff’s share of the dam shares given in exchange for the cotton delivered in 1956 has not been paid to him since 1957, the claimant’s share has not been paid since 1957, the claimant’s share has not been paid since 1957, the claimant’s share has not been paid since 1956, the claimant’s share has not been paid since 1957, the claimant’s share has not been paid since 1956, the claimant’s share has not been paid since 1957.” due to the fact thatPaid payable to the plaintiff in 1956 in exchange for the cotton given to the two dam shares, since the bet has not been paid to him since 1957, the lawsuit was filed with the request that the amount to be calculated from this date be paid together with the legal interest, at the appeal stage, when the population registration sample taken from the UYAP Integration system was examined, it was understood that plaintiff K1 died on 30.4.2013, and in the dispute under consideration, the right to the alleged receivables will be transferred to the heirs legally.“The plaintiff’s share of the dam shares gi
As a matter of fact, in a decision of the Court of Cassation; “The defendant requested a correction of the decision, his request was rejected on 20.03.2012. However, the plaintiff husband died on 12.03.2012 before the decision correction examination, and since this issue was not known by the Supreme Court, the defendant’s request for decision correction was reviewed and rejected by our Department on the merits. The marriage ended with the death of the plaintiff before the decision correction review, and the death incident is effective for the decision of the Supreme Court and will change the decision. Since the plaintiff died on the date of the decision correction examination, the marriage was terminated by death, and there is no divorce case that continues the issue in this case. In this regard, there is no basis for the decision of our Department regarding the rejection of the request for correction of the decision. For the reasons explained, our apartment was established based on a financial error
since the decision of the local court does not remain the subject of the divorce case due to death, it had to be overturned to make a decision on this issue and the plaintiff’s heir followed the case in terms of defect, the decision of the defendant’s request for correction of the decision was accepted and the decision of the local court was overturned to make a decision on this issue.”[9] it is stated that the case is still ongoing even if the decision is at the stage of correction by saying, at this stage, it has also been stated that there is no room to make a decision on divorce, since the marriage will be considered terminated by death if one of the parties dies, and it should be decided to determine whether the defendant spouse is defective in filing a divorce case.
In an agreed divorce case, it is also explained that if one of the parties to the case died after the decision on the agreed divorce, but before the decision was finalized, the marriage would be terminated by death, and a decision should be made to determine the fault of the deceased party due to the request of the heirs.[10]
On the other hand, if there is an individual application to the Constitutional Court and the applicant has died after the date of the individual application, there is no provision in the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court and the Rules of Procedure to be applied. For this reason, if the applicants pass away after the application date, the provisions that correspond to the nature of the individual application will be applied in the relevant procedural laws on the procedure that will be applied. The Constitutional Court in many decisions; “The Constitutional Court, whose main task is to interpret the Constitution, thus determining the scope and limits of the fundamental rights and freedoms contained in the Constitution, is not in accordance with the nature of the individual application, as it assumes the obligation to ensure that heirs who do not reject the inheritance continue to apply within 3 months if the applicants die after the date of application, which will be an obstacle to the performance of the Court’s main task and thus may distract the Court from its basic function, for this reason, 80 of the Rules of Procedure. according to paragraph (ç) of article (1), if it is concluded that there is no reason justifying the continuation of the examination of the application, it may decide to drop the application, however, 80 of the Rules of Procedure. in accordance with paragraph (2) of the Article, it is stipulated that the examination of the application may be continued if the application, interpretation or determination of the scope and limits of fundamental rights or respect for human rights make it necessary.”he is making a judgment in the form of. [11]