General Assembly of Law 2017/1911 E. , 2018/344 K.
“Text Of Jurisprudence”
COURT : Commercial Court
At the end of the trial held for the case “cancellation of the decision of the board of directors of the cooperative and determination of the membership of the cooperative”, which was dec between the parties, Kayseri 1. The Commercial Court of First Instance granted the acceptance of the case on 04.04.2013 day and 2012/477 E. and 2013/99 K. the decision No. 23 of the Court of Cassation is appealed by the defendant’s deputy. 11.09.2013 days and 2013/4390-E of the Legal Department. and 2013/5291 K. by his numbered decision:
“…The deputy plaintiff announced that an agreement had been made with the defendant cooperative to provide him with an apartment in exchange for the land owned by the plaintiff, the plaintiff’s Entry into Block F1 by including it in the Qur’an made in front of a notary Dec 5. Dec. 10 hit him, the plaintiff has been using the apartment since then, despite this, the membership registration was made by the decision of the board of directors of the defendant cooperative dated 07.10.2001 and numbered 264 … on behalf of the plaintiff’s sister-in-law, no action was taken between the plaintiff and this person to grant membership, the cooperative requested the determination of membership on behalf of the plaintiff and sued.
The defendant’s counsel, plaintiff’s co-operative you weren’t a registered member of the stock exchange for the right to land plot apartment in his capacity as the owner of the recording if the record was made in 2004 that the membership of the cooperative person named during the seven years of the transfer of the deed, and that any case has been opened over a year’s time has passed, the apartment that appeals found the statute of limitations …
The court has decided that the plaintiff’s claims may be the subject of an eda lawsuit, that the lawsuit filed is a detection case, and that the case should be dismissed with a bet; Our apartment 2012/4336 based on Decision No. 2012/5660 the case with the sentence, the construction contract in return for a share of the land claimed he was born with the determination of cooperative membership, the membership because it is not transferred to a third party requesting the cancellation of the transfer of membership is through breeding operations that are performed on demand, in return for a share of land, the construction contract, pursuant to the deed of the apartment, with the determination that the plaintiff should be given to operations that are performed by the cooperative because this right is not transferred to somebody else stated in the form of cancellation of the plaintiff’s demand for a definite result, although have been breeding party, subsequent requests will be met both by the court before the decision in a way that both from breeding breeding is not correct, judging by the plaintiff from the beginning of the process, in return for a share of the land suggests the existence of the construction contract, also indirectly through membership in the cooperative breeding is based on the declared demand changed, also the Member for the defendant ” my client is not a member of the cooperative for the plaintiff, the plaintiff is not involved in this case, there is another membership…” statement is in the form of where, in this case, the parties clearly and written statements by obtaining hesitation that doesn’t Mahal, the clarification of the dispute and the conclusion of the claimant’s claim were overturned on the grounds that it should be clearly determined and the outcome decided. As a result of the trial conducted in accordance with the dec deconstruction decree; a construction contract was concluded between the plaintiff and the defendant cooperative in exchange for a share of the land, a total of 167 people were attracted to the kur from 181 residences within the cooperative, there were no member numbers for the first 63 people on the list, the plaintiff was also included in this group, the plaintiff entered into Block F 1 A 5. No. 10 of dwellings layer when you hit the setup of the memorandum clearly, 104 respondents to rate as one of the joining member if they stated one of the land owner to setup 63, setup the number of their members to join the institution as a member it is written clearly in the memorandum, that in the absence of evidence that the plaintiff’s rights transferred to the third party, the defendant in this direction is the declaration of the cooperative, the president of the board of directors as a witness that the period of rest, both for the plot contains both the membership dues in return for plaintiff’s, the plaintiff stated that he remembers transferring his membership in exchange for dues to someone else, but he cannot remember whether he transferred his membership in exchange for the land plot, he did not file a statement even though the lawsuit was reported out of the case …, decision264 of the board of directors of the cooperative dated 07.10.2004
The decision was appealed by the defendant’s deputy.
1- The case is related to the request to cancel the transfer of membership by reclamation. From the evidence contained in the dossier, the decision of the board of directors of the cooperative dated 07.10.2004 and the membership of the plaintiff … are excluded from the case In this case, the court results from the provision of the facility …’s rights would also be affected, given the time about the person on the same grounds by the plaintiff in the lawsuit, after merging with this file in case of litigation, the parties are ruled by the establishment of evaluating evidence and statements should be considered that has not been true.
2- According to the reason for the violation, the other appeals of the defendant’s attorney have not been considered necessary to be examined for now…”
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 cancel the decision of the board of directors of the cooperative on the transfer of membership.
In order to build a building on the real estate owned by the dectiff’s deputy client, it was decided to provide his client with an apartment in the construction contract in exchange for a share of the land signed between the parties, in this regard, the plaintiff was registered as a member of the cooperative, and then the plaintiff entered Block F1 A in the lot made in front of a notary Dec 5. The apartment on floor 10 was hit and his client has been using the independent department since then, the defendant cooperative has accepted the plaintiff’s sister-in-law … as a member instead of the plaintiff by the decision of the board of directors dated 07.10.2001 and numbered 264, whereas his client is out of the case
You weren’t a registered member of the cooperative, the plaintiff’s attorney the defendant, the right to the land owner in exchange for a share of the plot is saved as the apartment is, therefore, that the case should be seen in the consumer court, the person named in 2004 to be made of the cooperative membership registration and deed of the transfer of the plaintiff’s claims well over a years time due to the passage of the statute of limitations had passed, but the case independent section
Refusal of the claimant’s request to determine that the respondent is a member of the cooperative on the grounds that there is no decision taken by the board of directors that the plaintiff has left the partnership due to the transfer of the cooperative partnership by the court, and then has been accepted as a cooperative partner; in terms of the request to determine that the defendant has the right to purchase an independent section of land from the cooperative with a reclamation petition, that this right has not been transferred and that the title of the independent section delivered by the cooperative should also be given to the plaintiff, it was decided to dismiss the case on the grounds that the plaintiff has no legal interest in opening a decisionization case when it is possible to file an eda case.
Of counsel on appeal plaintiff dairec special that is given to the first decision, the parties clearly and hesitation that doesn’t Mahal written statements by obtaining the elucidation of the dispute by the plaintiff and the request for the clear definition of a definite result that will occur after a decision should be made according to the result when breeding both before and subsequent requests will be met from breeding in a way that the decision was quashed on the grounds that the decision is not correct.
As a result of the trial conducted in accordance with the court’s decision to overturn; membership granted land in return for a share of the right of the plaintiff from the case by the plaintiff that the defendant maintained a contract or document has been transferred to the kooperatifce should be without basis by the board of Directors of the cooperative as well as day and 07.10.2004 Decision No. 664; otherwise, the transfer agreement and the defendant has the burden of proof belongs to with documents written evidence that despite the fact that the document submitted at the time kooperatifce a contract or if it is not the case, as reported to him , as a result, it was decided to cancel the decision of the board of directors of the cooperative dated 07.10.2004 and numbered 264 with the acceptance of the case on the grounds that the basis of the decision on the transfer of ownership of the rights could not be proved by written, conclusive and sufficient evidence.
The decision was overturned by the Private Department on the appeal of the defendant cooperative deputy on the grounds written in the title section above.
The court … has been notified that the case has been notified, despite the proper notification, it has not made an oral or written statement, and the case is related to the revocation of the decision of the board of directors of the defendant cooperative, so the defendant and the defendant are out of the case
The decision to resist was appealed by the deputy plaintiff.
The dispute that comes before the General Assembly of the Law through resistance is collected at the point of whether it is necessary to file a lawsuit based on the same reasons against the person who is aware of the case as a whistleblower and combine it with the case at hand.
Since the case is based on a two-party basis, there are necessarily two parties to the case as plaintiff and defendant. Due to the nature of the incident, sometimes more than one person may be involved on the plaintiff’s side and/or the defendant’s side. In cases where there are more than one person on the plaintiff and/or defendant side of the case, the relationship between the persons on the side consisting of more than one person is called “friendship of the case” (subjective unification of the case; decaddude of the parties) (Alangoya, H.Y.: Principles of Civil Procedural Law, Istanbul 2001, p. 131.). In order for a lawsuit to be filed by more than one person or against more than one person, it is necessary to have a legal connection between those who are on the same dec. In our law, this connection is found in the institution of litigation friendship.
Although case friendship may be subject to different distinctions according to the way it arises, case friendship is compulsory in the regulation in the Civil Procedure Code No. 6100 (HMK) (HMK m. 59) and discretionary litigation friendship (HMK m. 57 et seq. it has been ruled under two headings:)
Immediately here it is useful to explain the concepts in question.
Although the right that is the subject of a lawsuit is common between more than one person, the court must recognize that the friendship of a lawsuit is financially mandatory in the same way for all interested parties and in cases where a single decision must be made dec this legal relationship. 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 is a mandatory casemate. In practice and doctrine, the case friendship arising from material legal reasons is called “material compulsory case friendship”, and the case friendship arising from procedural law reasons is called “material compulsory case friendship”.
In what cases the case friendship is obligatory, it is usually determined by material law. A legal relationship (right or debt) that is the subject of a lawsuit is a joint (subsidiary) between more than one person, and if the court must make a single decision (decision) on this legal relationship in the same way for all interested parties (these people), the friendship of a lawsuit is financially obligatory (DEC. 59). The legal relationship between the case colleagues is very tight here; the case colleagues can act decisively and all together in the same way in the case. That is, it is not possible for the litigants to act differently from each other on the legal relationship (right or debt) subject to the lawsuit, nor can the court make a different decision about one or some of the litigants than the others (Kuru, B.: Civil Procedure, Istanbul 2001, C. III, p.3286-3287). Because the right that is the subject of a lawsuit in compulsory litigation is unique and does not have the same duration as the number of case friends.
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, attached to the outcome of the legal relationship between the parties to enable it to be true that that is duly obliged be filed against more than one person, in this case the shape in respect of mandatory-Litigation Partners is subject to, and the friendship of such litigation on the side of the defendant only. In such a case, there can be no mention of the fact that a single decision has been made on the case friends or that the case friends have an obligation to act all together and in the same way (HGK, 03.07.2013 day and 2012/21-1699 E., 2013/1029 K. decision no.).
All cases of case friendship, except for this mandatory case friendship described, are old.
Considering the concrete event in the light of all these explanations, it is mandatory that the lawsuits related to the cancellation of the decisions of the board of directors of the cooperative be filed against the cooperative. As a matter of fact, the lawsuit at hand has also been filed against the cooperative. However, since the request is related to the cancellation of the decision on the transfer of membership to the non-case …, the court has decided that
This situation obliges … to take part in the case and to use the rights of explanation and proof that will protect its own right. A contrary opinion constitutes a violation of the right to a fair trial regulated by Article 6 of the European Convention on Human Rights and the right to legal rest provided for in Article 27 of the Code of Civil Procedure. Accordingly, it should be accepted that there is some kind of compulsory case friendship in terms of its form (procedural) from the point of view of the respondent party, specific to the concrete event.
As it can be seen, this style of settlement is a solution that allows both the plaintiff and the non-plaintiff to protect the rights of both parties financially and procedurally in accordance with the law in terms of both plaintiffs’ and non-plaintiffs’ rights.
It is contrary to the procedure and law for the court to establish a provision on the merits without providing for the establishment of a party taking into account the above-mentioned material and legal facts.
In that case, the plaintiff should be given time to refer the case to the person who is not shown as the defendant by the court, if the case is referred to this person who has a connection in terms of material law within the given time, the case should be continued, otherwise the case should be dismissed for lack of adjectives.
Our internal law the law the General Assembly during the negotiations in the absence of litigation authority, therefore, should be merged with the case on a separate case from the case of a decision of the circle open and private place, with the justification of the decision to corruption have been proposed, although this view had been adopted by the majority.
As such, the decision to resist should be overturned for these different reasons and reasons described above.
S O N U Ç: Provisional Article 3 of the Civil Procedure Code No. 6100 of the decision of the defendant’s attorney to resist the acceptance of appeals for various reasons and reasons described above. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. according to Article 440 of the same Law, if requested, the advance fee for the appeal will be returned to the depositors. in accordance with the article, the decision was made by a majority of votes at the second meeting held on 28.02.2018, with the path to correction of the decision open within a fifteen-day period from the notification.
You can read our other articles and petition examples by clicking here