12. Legal Department 2021/684 E. , 2021/2377 K.
“Text Of Jurisprudence”
COURT : … District Court of Cassation
After the decision made by the District Court of Justice with the date and number written above, the file related to this work was sent to the apartment upon the request of the complainant and the defendant, and after the report prepared by the Examining Judge for the case file was heard and all the documents in the file were read and examined, the job was discussed and considered as necessary :
It is understood that the complainant applied to the magistrate’s court with a request to terminate the tender for real estate No. 80 ada 3 parcel tendered on 23/05/2016 after the sale by eliminating the partnership, the court of first instance decided to reject the request on the basis, and the appeal filed by the complaining shareholder and some of the defendant shareholders against this decision was also decided to reject on the basis.
50 of HMK No. 6100. according to the article; The one who has the right to exercise civil rights also has the right to be a party to the case. 51 of the same Law again. according to the article; The driver’s license for the case is determined according to the driver’s license for exercising civil rights.
The driver’s license of the party is the equivalent of the driver’s license of the right in civil law in procedural law, it begins with birth and ends with death. Who has a party driver’s license is determined according to TMK. (TMK m.8, and 48) Accordingly, every natural or legal person who has a driver’s license has a driver’s license to participate in the case. 28/1 of TMK. according to its article, the personality of natural persons and, with it, the right to drive end in death. For this reason, a lawsuit cannot be filed against a person who has died before the date of the lawsuit. 124 of HMK in the event of a lawsuit. according to the provision of the article, the participation of heirs in the case can be ensured. Since the personality has disappeared legally for the persons who have died after the lawsuit has been filed, if the heirs subject to the lawsuit are qualified to participate in the lawsuit or continue the lawsuit, TMK’s 605 et al. in accordance with it, the case may be postponed until the period established by law has elapsed. In this case, the heirs of the deceased person who accept the inheritance are also included in the trial as mandatory litigants. A case license is the equivalent of an actual driver’s license in civil law, which is the ability of a person to follow up a case and perform procedural actions through himself or a proxy that he will authorize. All natural and legal persons who have an actual driver’s license also have a case driver’s license.
As clearly stated in Article 114/1-d of the HMK No. 6100, the case and the driver’s license of the party are among the conditions of the case. The terms of the case are the conditions that must be found from the beginning to the end of the case. In other words, every natural or legal person who has filed a lawsuit and is in the position of a defendant must have retained this driver’s license until the continuation of the case and the verdict is finalized.
As for the adjective of the party; the right to sue a right (the right to sue), as a rule, belongs to the owner of that right. Who is the owner of a right, therefore, to whom the authority to sue for that right belongs, (to whom the title of plaintiff in that case will belong) is completely material
it is determined according to the rules of law. However, if it is determined that the plaintiff of a case does not have the title of plaintiff in respect of that case, the title of party is also in the scope of regulation of procedural law, since the court cannot examine whether the right to be sued exists and has to decide on the dismissal of the case due to the absence of the adjective.
In colloquial speech, the adjective is the relationship between the subject of the lawsuit, the subjective right (deciency) and the parties. The driver’s license of the party, the driver’s license of the case and the authority to follow up the case are related to the personalities of the parties to the case, but the adjective party is related to the subjective right of the subject of the case (Baki Kuru-… Arslan-Ejder Yilmaz, Civil Procedure Law, 7. edition, … 1995, p. 231). Therefore, the parties to the case must have a driver’s license of the party. That is, in order to be a party to a lawsuit, it is necessary to be either a real person; or, a judicial person. Because the driver’s license of the party corresponds to the civil law’s license to exercise rights
Again, 612 / I of the Turkish Civil Code. in its article, it is stated that if the inheritance is rejected by all the closest legal heirs, it will be liquidated by the Magistrate’s Court in accordance with the bankruptcy provisions. In accordance with this provision, if one of the parties dies and the inheritance is rejected by all the closest legal heirs, the inheritance will be liquidated in accordance with the bankruptcy provisions by the Magistrate’s Court, after the Magistrate’s Court is notified and appointed a liquidator, it becomes mandatory to continue the case by referring it to the liquidator.
Since the organization of the party is related to public order, this issue is taken into account by the court in accordance with its duty and by the Supreme Court of Cassation in case of appeal.
TMK’s 703. in the article, joint ownership ends with the transfer of property, the dissolution of the community or the transition to shared ownership. All partners must participate in the lawsuits to be filed regarding the property subject to subsidiary ownership.
In cases of termination of the tender for sales made on the basis of a decision to liquidate the partnership, all shareholders together with the buyer must be shown as opponents.
In a concrete case, the partnership made by the elimination of the tender after the termination of the sale in the case of a shareholder which is 80 Gündoğdu Island 3 parcels of Firaz in the case of termination of the Tender should be shown as a party is not a case where the defendant shareholder …‘or to be refunded will be notified of the notification issued during the trial phase according to the law on notification Bila address done the research and re-notification if it is not removed from the stakeholders …’s passed away on 19/12/2016 and 1. 2017/83 E of the Magistrate’s Court.-2017/1678 K. according to the decree No. 55 of HMK 6100, due to the death of one of his heirs and the unconditional refusal of the inheritance on 21/04/2017 at the trial stage and the termination of the party’s license at the end of the trial. in accordance with the provisions that affect the property rights of the heirs of the heirs to the legacy of compulsory litigation friend the present case, as in the case together, will be understood from the scope of the file, although it is rejected by all the beneficiaries of the estate in bankruptcy of the estate unconditionally if it is determined that the process of liquidation in accordance with the provisions postponed, again considering the lack of a title for persons who Bad Blood Heritage Party, not against …’S passed away on 03/03/2010, considering that the heirs … and … have stated in their statements received at the hearing that they unconditionally reject the inheritance, no case can be filed against the dead person, but HMK’s 124. in accordance with the article, hostility can be directed to heirs who accept the inheritance by changing their party, waiting for the process of liquidation of the estate in accordance with the bankruptcy provisions, if the inheritance is rejected by all heirs without registration, again, the shareholder … passed away on 04.07.2019, so the party’s license expired during the trial, HMK 124 and TMK 605 et al. in accordance with the provisions of the articles, it is necessary to make a decision by providing for the organization of the party.
In that case, as explained above by the court, the decision was overturned in order to continue the trial by providing a party organization and to establish a verdict according to the result that will be formed.
CONCLUSION: 364/2 of the IIK amended by Law No. 5311 for the reasons written above with the acceptance of the appeal request. article 371/1 of HMK No. 6100, which must be applied by sending.b, in accordance with articles 373/1, … the District Court of Justice 21. E dated 16.07.2020 and dated 2019/914 regarding the rejection of the appeal request of the Legal Department on the basis of-2020/1511 K. the abolition of the decision and 2. The date of 25.09.2018 of the Magistrate’s Court is 2016/931 E.-2018/1584 K. it was decided unanimously on 03/03/2021 that there is no place for the appeal requests of some of the defendant shareholders to be examined at this stage, the fee received in advance should be returned on request, the file should be sent to the Court of First Instance and a sample of the decision should be sent to the District Court of Justice.