Disclaimer; 307 et seq. of the Code of Civil Procedure. It is regulated in the articles and it is the plaintiff’s partial or complete waiver of the result of the claim. The consent of the other party and the court is not required for the waiver to be effective.
Waiver is a party action that can be applied at any time until the verdict is finalized. It is possible for partial or full waiver to be made at the appeal or decision correction stage, and if it is made at these stages, a decision is made to “reject the case” due to waiver and the Supreme Court gives a decision to overturn without an examination on the merits and the file is returned to the local court.
Claims for material and moral compensation, which are ancillary aspects of the divorce case, can be waived at any time until the verdict is finalized.
The Supreme Court decision on the subject is as follows;
T.R.C. Supreme Court of Law GENERAL ASSEMBLY E. 2017/2-3160 K. 2017/2040 T. 27.12.2017
SUMMARY: The plaintiff/counterdefendant attorney clearly and unconditionally stated that he waived these demands with the petition he submitted before the appeal of the decision to resist for pecuniary and non-pecuniary damages was reviewed by the Supreme Court of Appeals HGK. Although it has been determined in the examination that he has the authority to waive the lawsuit in his power of attorney, it is mandatory to take action within the framework of this statement of the plaintiff/counterdefendant attorney stating that he has waived the compensation claims subject to resistance. In such a case, the decision to resist cannot be reviewed by the HGK on appeal. In order for this situation, which arose after the verdict and constitutes a procedural obstacle to the review of the appeal, to be evaluated and decided by the local court, the decision to resist must be reversed.
CASE: At the end of the trial held due to the “mutual divorce and its accessories” case between the parties; Upon the request of the parties’ attorneys to review the decision dated 20.11.2014 and numbered 2013/1561 E., 2014/1438 K., given by the Ankara 11th Family Court regarding the acceptance of both divorce cases, the 2nd Civil Chamber of the Supreme Court of Appeals, dated 12.11.2015 and numbered 2015/6835 E., 2015/21217. K. was partially approved, partially reversed and returned to its place, and at the end of the retrial, the court resisted the previous decision.
After it was examined by the General Assembly of Legal Affairs and it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessary discussion was taken:
DECISION: The case is about mutual divorce and its accessories.
The decision given by the court regarding the acceptance of the mutually filed divorce cases was annulled upon the appeal of the parties, as the decision of the 2nd Civil Chamber of the Supreme Court of Appeals, whose merit and decision number is stated above, was less than the pecuniary and non-pecuniary damages awarded in favor of the plaintiff/counter-defendant.
At the end of the trial based on partial reversal, the court resisted the previous decision.
The decision to resist was appealed by the plaintiff/counterdefendant attorney.
While at the appeal stage, the plaintiff/counter-defendant attorney clearly and unconditionally stated that he waived the case in terms of pecuniary and non-pecuniary damages with the petition dated 27.11.2017.
Waiver is defined in Article 307 of the Code of Civil Procedure No. 6100 as the plaintiff’s partial or complete waiver of the outcome of the claim; In article 311, it is explained that waiver will result in the consequences of the final judgment.
In accordance with the regulation in Article 310 of the Code of Civil Procedure, the case may be waived at any stage before the verdict becomes final. Since a resistance decision that has been appealed but has not yet been discussed by the General Assembly of the Supreme Court of Appeals has not been finalized within the framework of procedural law, waiver of the case is possible at this stage.
In the concrete case, the plaintiff/counter-defendant attorney clearly and unconditionally stated that he waived these demands with the petition he submitted before the request for appeal of the decision to resist for pecuniary and non-pecuniary damages was discussed by the General Assembly of the Supreme Court of Appeals. During the examination, it was also determined that he had the authority to waive the lawsuit in his power of attorney.
In that case, it is mandatory to take action within the framework of this statement of the plaintiff/counterdefendant’s attorney stating that he has waived the compensation claims subject to resistance.
In such a case, the decision to resist cannot be reviewed by the General Assembly on appeal. The decision to resist should be overturned in order for the local court to evaluate and decide on this situation, which arose after the verdict and constitutes a procedural obstacle to the review of the appeal.
CONCLUSION: In order to evaluate the petition submitted by the plaintiff/counterdefendant attorney and make a decision according to its result, the court decision shall be REVERSED in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is implemented in accordance with the Provisional Article 3 of the Code of Civil Procedure No. 6100, with this different justification, there is no need for the appeal request to be examined for now according to the reason for reversal, and if requested, the appeal advance fee will be returned to the depositor, the same It was decided unanimously on 27.12.2017, with the possibility of correcting the decision as of the notification in accordance with Article 440 of the Law.