Although the terms of the case are subject to many distinctions, the important distinction from the point of view of the subject of examination is that the terms of the case are subjected to a distinction and examined as general terms of the case and special terms of the case.
According to this, HMK’s 114. since the conditions of the case listed in the article are the conditions that are valid for all cases, they are called the general conditions of the case. In the second paragraph of the same article, “The provisions related to the conditions of litigation contained in other laws are reserved.” the statement takes place. Accordingly, in addition to the general litigation requirements listed in the CCP, there are regulations that provide for a special set of litigation requirements in some individual cases. Oct.
The best example of the special case conditions is that it is clearly regulated in 277/1-b,1 of the EBL that the creditor must have an incapacitated passport in order for a cancellation claim to be filed according to the EBL. In addition, for the debt relief case, the plaintiff borrower must deposit a guarantee at the rate of 15% of the amount you will receive (PL m. 69), in order for a divorce case to be filed due to abandonment, the defendant spouse must be notified of the warning decision and two months must elapse from the notification of the warning decision(MK m. 164/2) is an example of the special case conditions clearly regulated in the relevant special laws.
Again, 277-284 of the IIK. in order to file a cancellation claim according to the articles, the creditor has a certificate of inability to pay the debt (İİKmd. 143, 105) the existence of a certificate of incapacity indicating that the creditors of the heirs do not have the opportunity to collect their receivables from the heir who has a hidden share in order for those who are creditors to file a lawsuit for criticism (Art. 143, 105). 153, 105) has been received and the heirs have not filed a case of criticism despite the warning (TMK art. 562) is a special case requirement.
In a decision of the Constitutional Court, in the case of an Individual Application, if the application fee is not deposited during the application or in the case of applications requesting legal aid upon rejection of the request for legal aid, due to the fact that the application requirement has not been fulfilled, 49 of Law No. 6216. article 115 of the Law No. 6100 by virtue of paragraph (7) of the Article. in accordance with paragraph (2) of the article, it is stated that it is necessary to decide on the procedural rejection of the application.[1]
In cases of cancellation of savings, the case law of the Court of Cassation provides for certain special conditions in addition to the incapacity certificate requirement listed in the law. These conditions are stated in a decision as follows; “The case is 277 of the OIC. and it relates to the request for cancellation of the savings opened based on the continuation articles. In order for such cases to be heard, it is necessary that the plaintiff has a real receivable from the defendant debtor, that an enforcement action against the debtor has been finalized, that the savings subject to cancellation have been made after the birth of the debt, and that there is a certificate of incapacity received about the debtor, and the existence of these conditions must be evaluated by the court ex officio.”[2]
The Court of Cassation has stipulated a number of special case conditions in addition to the incapacitated document in the cancellation of savings cases and has insisted in its decisions that these conditions should be sought in the concrete case. Other conditions other than the incapacitation certificate are not the conditions specified in the OIC.
In cases of cancellation of savings filed according to general enforcement law, the conditions specified in the decisions of the Supreme Court are; 1- Having a valid incapacity certificate, 2- The plaintiff has a real receivable in the defendant debtor, 3- Having a finalized enforcement proceeding, 4- The cancellation of the savings made after the birth of the debt. The specified conditions are provided for cancellation cases filed in accordance with the general enforcement law.
In cases of cancellation of savings filed according to public enforcement law, the equivalent of the conditions listed can be determined as follows; 1- Finding a finalized public receivable, 2- Finalizing the follow-up by the collection department for the finalized public receivable, 3- The fact that the subject of cancellation of the public receivable was born before the savings.
It is possible that the deficiencies mentioned in some of the conditions of the case discussed in detail above may be corrected during the trial. In such cases, it is not decided to dismiss the case out of procedure, and the party is given a certain period of time to remedy the deficiency (HMK Art. 115/2). Issues such as the lack of Power of Attorney, the fact that the expense advance has not been deposited are such deficiencies. However, if the deficiency is not corrected within the specified time limit, the court will dismiss the case out of procedure due to the absence of a legal requirement. If the lack of the case requirement has not been noticed by the court and has not been put forward by the parties, but this deficiency has been corrected before the verdict is rendered, the case will no longer be dismissed procedurally (HMK Art. 115/3).
result
As a result, the importance of general and specific litigation conditions is that its presence or absence can be observed spontaneously by the judge at every stage of the case in order for the case to be considered and decided on the merits, and the deficiency can be asserted by the parties at every stage of the case (HMK m. 115/1).
If the conditions of the case are incomplete, the case should be dismissed procedurally. However, if it is possible to eliminate the deficiency of the case requirement, a certain period of time is given for its completion. If the deficiency of the case requirement has not been eliminated within this period, the case will be rejected by procedure due to the absence of the case requirement. If the conditions of the case exist, only in this case, the examination of whether the right requested by the plaintiff in the case(the main claim) is justified is carried out.
On the other hand, if the deficiency of the case requirement was not noticed by the court before the entry into the merits of the case, was not put forward by the parties, and but this deficiency was corrected at the time of the judgment, the case cannot be dismissed procedurally due to the deficiency of the initial case requirement (HMK Art. 115/3).
Despite all the explanations, it is not always easy to determine whether a matter regulated by law is a special case requirement. In this case, in particular, it is necessary to look at whether the specified condition prevents the examination of the merits of the case and whether it was taken into account by the judge on its own.
[1] AYM 30.06.2016 T., 2014/963 K.
[2] Judge. 17. HD, 20.05.2009, 2951/3395, nak.: Guneren, A.: Cases of Annulment of Rations and Savings in Execution and Bankruptcy Law, Ankara 2012, p. 375.