General Assembly of the Law 2017/2535 E. , 2018/778 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the case of “cancellation of the mortgage”, Dec. 19. 22.11.2013 day and 2013/518 E, which were issued by the Court of First Instance on the procedural refusal of the case., 2013/562 K. the appeal examination of the numbered decision was requested by the deputy plaintiffs of the Supreme Court of Cassation 14. The day of 01.04.2014 of the Legal Department and 564.2014 of the E., 2014/4309 K. by his numbered decision:
“…Plaintiffs, plaintiffs on 10.11.1958
The court decided to dismiss the case on the grounds that a lawsuit cannot be filed against the dead persons.
The decision was appealed by the deputy plaintiffs.
The case concerns the request to remove the mortgage.
A driver’s license is a license to be a party to a lawsuit. 50 of HMK No. 6100. in the article, it is stipulated that those who have the right to exercise civil rights will also have the right to be a party to the case. As stated in the provision of the law, the party’s driver’s license is the form in which the driver’s license of rights in civil law is embodied in procedural law. It is stated in the article that those who have the right to exercise civil rights, without distinguishing between natural and legal persons, will also have the right to be a party to the case.
124 of HMK No. 6100 entitled ”Voluntary change on the side”. according to the article; a change of party in a case is possible only with the express consent of the counterparty. However, a request for a change of party caused by a material error or not contrary to the rule of honesty is accepted by the judge without seeking the consent of the counterparty. If the incorrect or incomplete representation of the party in the petition of claim is based on an acceptable error, the judge may accept the request for a change of party without seeking the consent of the counterparty.
28 of TMK. in the article, it is stated that the driver’s license to exercise civil rights and, accordingly, the party’s driver’s license will expire upon the death of the natural person. Although a person who has terminated his identity due to death before the date of the case cannot be sued against him because the party will lose his driver’s license; as stated above, the interlocutor material to be shown wrong because of my mistake, despite all the attention being unable to correctly identify the plaintiff who is suing, or made him just a short time ago after a process of acting with the transaction have been dealing with the business partner in the event of death, showing the wrong sides if it is not contrary to the rule of honesty, considering the relationship of the resulting lawsuit due to a superior judge should continue with the real side benefit.
In this case, the court must enter into the merits of the case by notifying the petition of claim to all the heirs of the deceased person determined by the certificate of inheritance and providing the organization of the party.
In a concrete dispute; the subject of the lawsuit is immovable property numbered 156 and 162 parcels dated 10.11.1958 …, Rashid Jamber, The plaintiffs stated that the MERNIS addresses of the parties to the lawsuit filed for the removal of this mortgage should be determined, and the heirs of the dead ones should be determined. Considering the date of mortgage establishment, the acceptance that plaintiffs should know the addresses of mortgage creditors, whether they are alive or dead, and who their heirs are is contrary to the usual course of life. Therefore, in the case of the plaintiff’s lawsuit against the dead persons, HMK’s 124/2. there is no violation of the honesty rule described in the article. The decision of the General Assembly of the Supreme Court of Law dated 11.09.2013 and numbered 2013/14-612 / 2013/1297 is also in this direction.
Therefore, it is necessary to make a decision on the merits of the work by identifying the heirs of the dead parties who have been mortgaged for the benefit of the real estate subject to litigation and including them in the case, and the MERNIS addresses of the right ones should be determined and duly provided with the notification of the lawsuit petition and the organization of the party.
It was not considered correct for the court to decide to dismiss the case on written grounds, leaving aside the issues described above, so the ruling had to be overturned…”
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 concerns the request to remove the mortgage.
The court decided to dismiss the case on the grounds that a lawsuit cannot be filed against the dead person.
Upon the appeal of the plaintiffs’ attorney, the decision was overturned by the Special Chamber on the above-mentioned grounds.
Although the court may provide information about the relevant persons from the Land Registry Offices and Population Directorates in accordance with Article 2 of the Law on Advocacy of the deputy plaintiffs, it does not do so, in accordance with the relevant provisions of the Code of Civil Procedure (JUL), the population records and other documents of the defendants should be added to the petition for litigation, the decision was made to resist on the grounds that the assignment of the task of completing these documents to the judge was not in accordance with the regulation in the relevant articles of the HMK regulated in accordance with Article 2 of the Law No. 1136 on Advocacy and the principle of “fair and speedy trial” provided for in the European Convention on Human Rights, and the case against the dead person could not be filed.
The decision to resist was appealed by the deputy plaintiffs.
The dispute that came before the General Assembly of Law through resistance: who are the heirs of the beneficiary of the mortgage who has died in the current case followed by proxy and whether documents related to the determination of the address of these persons should be provided before the case is opened and whether the jul should be directed to these persons; it is collected at the points whether it is a situation caused by a material error and contrary to the rule of honesty that the plaintiff does not know that the defendants are dead, and whether the case can be continued by including the heirs of the deceased in accordance with Article 124 of the HMK if the case is filed against the dead person in accordance with the conclusion to be reached here.
As is known, a party’s driver’s license in a case is possible by having a driver’s license to exercise civil rights (HMK m.50). The enjoyment of civil rights, that is, the right to a driver’s license, begins at the time of falling into the womb on the condition of a full and healthy birth and continues until the death of the person (TMK m.28). Therefore, in the event of the death of one of the parties in the HMK, if the heirs have not accepted or refused the inheritance, the case will be postponed until the periods established by law in this regard have elapsed; however, it is stipulated that the judge may decide on the appointment of a registrar to follow up the case upon request in cases where it is inconvenient to delay (HMK m.55; HUMK m.41). However, the Law does not show how to act if a lawsuit is filed against a dead person.
As a rule, there is no possibility to file a lawsuit on behalf of the dead person and against the dead person. In the same way, as a rule, it is not possible to refer the case to the heirs in the event that a lawsuit is filed against the dead person. Because, as can be seen from the above explanations, the dead person does not have a party driver’s license. In fact, when filing a lawsuit, the plaintiff is expected to investigate the defendant’s driver’s license status. However, it may sometimes be based on error that the plaintiff does not know that the defendant is dead. As a matter of fact, in Article 124 of the HMK; “ A change of party in a case is possible only with the express consent of the counterparty. The special provisions contained in the laws on this subject are reserved. However, a request for a change of party caused by a material error or not contrary to the rule of honesty is accepted by the judge without seeking the consent of the counterparty. If the incorrect or incomplete representation of the party in the petition of claim is based on an acceptable error, the judge may accept the request for a change of party without seeking the consent of the counterparty. In this case, the judge rules on the costs of the proceedings in favor of the person who has been excluded from being a party to the case and has not caused a lawsuit to be filed against him,”the regulation reads. As emphasized in the justification of this article, binding the change of party to the defendant’s absolute consent will bind the judicial relationship to a strict form, which is one of the principles dominating the proceedings “the principle of procedural economics” (HMK m.30) is incompatible with.
At the moment, the plaintiff has not been able to determine whether the defendant is alive or not, despite all the efforts, care and measures expected of him, based on a mistake, and if this situation clearly does not contradict the rule of honesty, it should be possible to continue the case against the heirs, that is, the real parties, who are likely to be sued later in this litigation relationship.
All these descriptions within the scope of the concrete case, the plaintiffs attorney is 156 and 162 of their clients maliki mortgage on immovable property on the date of parcel No. 10.11.1958 is established, the client wanted to pay for their mortgage, although mortgage creditors and heirs, they couldn’t reach because of the intervening long, noting that the cost of the case by the court to be determined by the subject matter of the mortgage warehouse mortgage on immovable property and the case has been decided to remove the request. Considering that the mortgage was established in 1958, the fact that plaintiffs must know the addresses of mortgage creditors, whether they are alive or dead, who their heirs are will be contrary to their general life experience. Therefore, it is necessary to accept that the filing of a lawsuit against the dead persons will not contradict the rule of honesty described in the second paragraph of Article 124 of the HMK, that the case of filing a lawsuit against the dead person is based on error and is not contrary to the rule of honesty.
For the reasons described, it was not considered correct for the court to decide in writing as a result of an erroneous assessment by the plaintiff without giving him the opportunity to direct the case to the heirs in accordance with Article 124 of the HMK, and if he wants to direct it, without giving him the opportunity to identify his heirs and notify them.
As a result, while the decision to disrupt the Special Chamber adopted by the General Assembly of the Law should be followed, resistance to the previous decision was deemed contrary to the procedure and the law, and the decision to resist should be overturned.
C O U N s: to resist the appeal of the plaintiffs counsel on appeals to warrant the reversal of the decision of the adoption of private apartment for reasons of 6100 shown) that is added to the code of Civil Procedure provisional Article 3” of 1086 429 hereof implemented with attribution in accordance with this law, the corruption of the request in the case, the appeal she tucks the back of tuition in advance of provision of the first paragraph of Article No. 1086 440 in accordance with the procedures according to the law within fifteen days of the receipt of the decision to open the way for the correction of the decision 11.04.2018 on the day it was decided by consensus.
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