Republic of Turkey
Supreme Court of Appeals
General Assembly of Law Case No: 2015/9-3162
Decision No: 2018/369
Decision Date: 28.02.2018
LABOR’S CLAIMS CASE – CLAIM FOR COLLECTION OF DIFFERENTIAL LABOR CLAIMS BASED ON THE GRADE AND LEVEL TO BE DETERMINED BY TAKING INTO ACCOUNT THE SERVICE PERIOD SPENT IN SEASONAL LABOR –
INTEREST TO BE APPLIED TO ALL CLAIMS FROM THE DATE OF THE LAWSUIT – AFFIRMATION OF THE DECISION TO RESIST
SUMMARY: The lawsuit concerns the claim for the collection of differences in wages, contractual and statutory additional payments, and wear and tear premiums, based on the grade and level to be determined by taking into account the service period spent in seasonal labor before being transferred to permanent status. Since this is an uncertain claim case, the material and formal legal consequences arising from the filing of this case (interruption of the statute of limitations and others) should also apply to this case. Therefore, it was correct for the court to apply interest to all claims, including the increased amounts requested in the petition for increased claims, from the date of the lawsuit. (ECHR Article 6) (Law No. 2709 Article 36) (Law No. 6100 Article 107) (Law No. 4857 Articles 3, 8, 22, 28, 32, 37, 67) (Supreme Court of Appeals
14.07.2010 T. 2010/19-376 E. 2010/397 K.) (Supreme Court of Appeals 17.10.2012 T. 2012/9-838 E. 2012/715 K.)
Case: The appeal against the decision of the Sakarya Labor Court dated 06.01.2015 and numbered 2014/393 E. 2015/27 K., which accepted the case, following the trial in the case of “labor claim” between the parties, is being reviewed by the defendant Sakarya Upon request by the representative of the Metropolitan Municipality, the 9th Civil Chamber of the Supreme Court of Appeals, with its decision dated 12.03.2015 and numbered 2015/4981 E. 2015/10428 K., ruled as follows:
(…The plaintiff worker, claiming that the periods during which he worked as a temporary worker should be taken into account when he transitioned to permanent status, requested and sued for the collection of some difference in labor receivables that were underpaid in the past 5 years as an uncertain receivable lawsuit.
The defendant’s attorney requested that the case be dismissed on the grounds of lack of standing and on the merits, stating that the plaintiff’s claims were time-barred.
The plaintiff’s attorney, in a petition submitted after the expert report, increased the amount of receivables he requested and requested that the amount of receivables stated in the expert report be awarded.
The court accepted the requests by accepting the type of case as an uncertain receivable lawsuit, and the defendant appealed the judgment.
1- According to the documents in the file, the evidence collected, and the legal grounds on which the decision is based, the defendant’s appeals, except for the scope of the following paragraph, are unfounded. 2- The labor receivables that are the subject of the lawsuit are the subject of an uncertain receivable lawsuit.) There is a dispute between the parties regarding whether or not it is possible, the statute of limitations, and the commencement of interest. The uncertain claim lawsuit is a new type of lawsuit foreseen by the Code of Civil Procedure No. 6100, which came into force on October 1, 2011, and provides some advantages to the creditor. According to the aforementioned provision,
“In cases where it cannot be expected or is impossible for the creditor to determine the amount or value of the claim fully and precisely at the time the lawsuit is filed, the creditor may file an uncertain claim lawsuit by specifying the legal relationship and a minimum amount or value.” Accordingly, if it is impossible to determine the amount of the claim at the time the lawsuit is filed, an uncertain claim lawsuit can be filed. On the other hand, if it cannot be expected for the creditor to determine the amount or value of the claim precisely, an uncertain claim lawsuit can again be filed. In the justification of Article 107 of the Code of Civil Procedure, which regulates the uncertain claim lawsuit, the freedom to seek justice has been emphasized many times. Again, even though the creditor knows the legal relationship, the counterparty, and the minimum amount that can be demanded, “the full amount of the claim cannot be determined in full.” The fact that the employer is unable to determine the claim as such is also among the reasons for the lawsuit. Therefore, when interpreting the case of an uncertain claim, the creditor’s right to seek redress must be evaluated. Conversely, it would not be correct to interpret the relevant provision in a way that restricts the creditor’s access to their rights.
If the claim in question is to be determined by the information or documents provided by the opposing party, the claim should be considered uncertain. This criterion, valid in comparative law, is accepted as determination during the trial “as a result of the information provided by the opposing party” at the beginning of the second paragraph of Article 107.
When we consider the issue from the perspective of labor legislation, it is seen that Articles 3, 8, 22, 28, 32, 37, and 67 of the Labor Law No. 4857 impose an obligation on the employer to keep records for each employee and to provide documents to the employee. As a rule, it cannot be said that the employee’s claims are uncertain for the employer who complies with all legal obligations.
Because when the worker’s working hours are fully recorded, their wages, wage supplements, and working conditions are determined by the employment contract, the worker is given a wage slip every month, daily and weekly working hours are communicated to the worker in advance, and the worker is given documentation for extraordinary work performed, many of the worker’s receivables are certain or ascertainable. Only for some receivables that are left to the judge’s discretion, there may still be some initial uncertainty. The calculation of labor receivables is generally subject to two criteria. When the worker’s working hours and wages, along with supplements, are known, the worker’s receivables are ascertainable. Therefore, especially in public institutions, since the worker’s work is fully reported to the Social Security Institution and the worker’s wages and supplements are included in the collective bargaining agreement applied in the workplace, the worker’s receivables are ascertainable. However, it is not possible to determine fully and completely at the outset claims such as moral damages, overtime pay subject to discretionary reduction, weekend pay, public holiday pay, penalty clauses, and wages for the remaining term of the contract, which fall within the judge’s discretion. Indeed, in the justification of the Justice Commission for Article 107, it is stated that an uncertain claim lawsuit can be filed if the creditor, “even though he/she knows and can determine the minimum amount he/she can claim, cannot fully determine the entire claim.” The justification mentions, as an example, determining the amount of the claim through “discovery and expert report,” which is a very common practice in labor law. Again, in the second paragraph of Article 107, it is mentioned that the amount of the claim is determined “as a result of the information given by the other party or the investigation,” and when the employer, who is obliged to provide the employee with a document while working due to the legal obligations mentioned above, fails to do so, it is not correct to expect the employee to determine the exact amount of the claim. In the provision that provides for an uncertain claim lawsuit, we encounter two elements, one subjective and the other objective. An uncertain claim lawsuit can be filed if it is objectively impossible to determine the amount of the claim or the value of the lawsuit. For example, in a lawsuit filed by an employee who has suffered a work accident, it is impossible to determine the mutual fault percentages of the employer and the employee, whether there is strict liability, and if so, the state of inevitability and the disability percentages at the stage of filing the lawsuit. The subjective element is that it cannot be expected from the creditor to determine the amount of the claim. In a situation where a worker is dismissed without their legal rights being paid, in addition to the expenses mentioned above, obtaining an expert accounting report to determine potential labor claims can also be considered an obstacle to the freedom to seek redress. The impossibility of expressing the amount of the claim numerically is relevant when the plaintiff does not know the exact amount and this lack of knowledge stems from facts within the defendant’s domain. It should not be considered possible for a worker who is not a unionized worker and is not expected to have detailed knowledge of legal labor claims to determine their claims accurately, let alone name them correctly. However, it would not be possible to reach the same conclusion for a worker who holds positions such as legal advisor, personnel specialist, or accounting manager at the workplace. Before the uncertain claim lawsuit entered our legal system, the criterion of being liquid (certain) was accepted as case law in terms of entitlement to execution denial compensation. The Supreme Court has accepted that this criterion can also be taken into account in determining whether the claim is certain or not. According to the Supreme Court; “In order for a receivable to be considered liquid, either the actual amount of the receivable must be certain and fixed, or all the elements must be known or necessary to be known so that it can be determined by the debtor;
thus, it must be possible for the debtor to verify and determine the amount of the debt; in other words,
the debtor must be able to determine how much he owes on his own.
If these conditions are not met, a receivable cannot be considered liquid” (Supreme Court of Appeals, 14.07.2010, no. 2010/19-376 E, 2010/397 K;
Supreme Court of Appeals, 17.10.2012, no. 2012/9-838 E, 2012/715 K).
An uncertain receivable lawsuit can be filed in three different ways within the framework of the current legal regulation. The possibility of filing an uncertain claim lawsuit (with a request for collection) is stipulated in the first and second paragraphs of Article 107 of the Code of Civil Procedure.
The lawsuit for the determination of an uncertain claim is based on the third paragraph of the same article. According to the rationale of the article, the creditor can also file a partial performance lawsuit or a full determination lawsuit. Each type of lawsuit has different characteristics.
In an uncertain claim lawsuit with a request for collection, the creditor must make the amount that he/she can determine the subject of the lawsuit.
It would not be correct to request a random amount in this regard.
For example, an employee whose service is recorded as 10 years and minimum wage in the records of the employer and the Social Security Institution can file an uncertain claim for severance pay by stating that their working period is 12 years and their net wage is 2,000.00 TL. In this lawsuit, the amount that can be determined according to the recorded period and minimum wage should be requested. In other words, in an uncertain claim for collection purposes, the creditor should make a calculation as far as they can determine and request this amount. If a hypothetical amount (100.00 TL) is shown in the lawsuit petition, it would not be correct to accept the lawsuit as an uncertain claim for collection purposes. In an uncertain claim for collection purposes, if the employer’s response is a settlement in this direction during the preliminary examination phase or the uncertainty is eliminated during the investigation phase, the plaintiff can increase the amount according to Article 107/2 and demand the collection of the entire claim. The prohibition against expanding the claim does not come into play at this stage. According to the rationale of Article 107 of the HMK, once the claim becomes certain, an increase can only be made once. If a second increase is desired, the prohibition against expanding the claim will be encountered. In an uncertain claim lawsuit for collection, the statute of limitations is interrupted for the entire claim on the date of the lawsuit. The interest commencement date should be the date of the lawsuit if there is no default before the lawsuit. For the increased portion after the claim is determined, the interest commencement date is the date of default or the date of the lawsuit. It should be noted that all the opportunities provided to the creditor by an uncertain claim lawsuit arise only in an uncertain claim lawsuit for collection purposes. While it is accepted in Article 107/3 of the HMK that an uncertain claim lawsuit can be filed as a declaratory judgment lawsuit, it is also possible to file the lawsuit without specifying the amount. In this case, in order to avoid discussions regarding the lack of legal interest, the last sentence of Article 107 states that there is a legal interest in filing an uncertain claim lawsuit as a declaratory judgment lawsuit. The most important consequence of being able to file an uncertain claim lawsuit as a declaratory judgment lawsuit is that the uncertain claim declaratory judgment lawsuit also interrupts the statute of limitations for the claim. This matter is explained in the justification of Article 107.
After filing an uncertain claim lawsuit as a declaratory judgment lawsuit, it is not possible to increase the amount according to Article 107/2 of the Code of Civil Procedure upon the determination of the claim during the trial. Because the aforementioned provision can only be applied if the uncertain claim lawsuit is filed as a performance lawsuit by specifying the amount. However, after the claim is determined through the trial in the uncertain claim declaratory judgment lawsuit, the collection of the claim can be requested by completely amending the lawsuit. The difference between filing an uncertain claim lawsuit as a declaratory judgment lawsuit and then converting it into a performance lawsuit through amendment, and filing the lawsuit for a specific amount, is evident in the starting point of interest. When an uncertain claim lawsuit is filed as a declaratory judgment lawsuit, the starting point of interest should be the date of amendment where the claims are requested as a figure. According to the reasoning of Article 107 of the Code of Civil Procedure, it is possible to file an uncertain claim lawsuit as a partial performance lawsuit along with a comprehensive determination lawsuit. Therefore, in an uncertain claim lawsuit, in addition to the collection of a certain amount, the determination of the remaining amount can be requested, and when determined during the trial, the remaining amount can also be demanded. The difference from a full performance lawsuit is that instead of demanding the amount that can be determined, a partial amount can be demanded. For example, when a creditor files an uncertain claim lawsuit for an uncertain receivable, and demands collection for 100.00 TL and determination of the remaining amount, this is referred to as a partial performance comprehensive determination lawsuit. This is because the creditor has made a demand for a hypothetical amount instead of making the amount that can be determined from the records of the employer or official institution the subject of the lawsuit. The difference between this lawsuit and a partial lawsuit is that the creditor makes demands by referring to an uncertain claim lawsuit without stating that they have filed a partial lawsuit. As explained above, if the creditor makes a claim stating that they are filing a partial claim for an uncertain debt, or if partial claims are made without mentioning an uncertain debt, the lawsuit is considered to have been filed as a partial claim. The statute of limitations is interrupted for the entire debt at the moment the partial performance and total determination lawsuit is filed. However, there is a difference from an uncertain debt lawsuit for collection purposes in terms of the commencement of interest. The date of the lawsuit should be accepted as the commencement of interest for the amount in question. Since only the determination of the remaining part of the debt has been requested, interest should be awarded from the date the determined balance amount is requested later. In the concrete case, the dispute between the parties is whether the periods during which the plaintiff worker worked in a seasonal status before being hired into a permanent position in 2001 should be taken into account.
For example, an employee whose service is recorded as 10 years and minimum wage in the records of the employer and the Social Security Institution can file an uncertain claim for severance pay by stating that their working period is 12 years and their net wage is 2,000.00 TL. In this lawsuit, the amount that can be determined according to the recorded period and minimum wage should be requested. In other words, in an uncertain claim for collection purposes, the creditor should make a calculation as far as they can determine and request this amount. If a hypothetical amount (100.00 TL) is shown in the lawsuit petition, it would not be correct to accept the lawsuit as an uncertain claim for collection purposes. In an uncertain claim for collection purposes, if the employer’s response is a settlement in this direction during the preliminary examination phase or the uncertainty is eliminated during the investigation phase, the plaintiff can increase the amount according to Article 107/2 and demand the collection of the entire claim. The prohibition against expanding the claim does not come into play at this stage. According to the rationale of Article 107 of the HMK, once the claim becomes certain, an increase can only be made once. If a second increase is desired, the prohibition against expanding the claim will be encountered. In an uncertain claim lawsuit for collection, the statute of limitations is interrupted for the entire claim on the date of the lawsuit. The interest commencement date should be the date of the lawsuit if there is no default before the lawsuit. For the increased portion after the claim is determined, the interest commencement date is the date of default or the date of the lawsuit. It should be noted that all the opportunities provided to the creditor by an uncertain claim lawsuit arise only in an uncertain claim lawsuit for collection purposes. While it is accepted in Article 107/3 of the HMK that an uncertain claim lawsuit can be filed as a declaratory judgment lawsuit, it is also possible to file the lawsuit without specifying the amount. In this case, in order to avoid discussions regarding the lack of legal interest, the last sentence of Article 107 states that there is a legal interest in filing an uncertain claim lawsuit as a declaratory judgment lawsuit. The most important consequence of being able to file an uncertain claim lawsuit as a declaratory judgment lawsuit is that the uncertain claim declaratory judgment lawsuit also interrupts the statute of limitations for the claim. This matter is explained in the justification of Article 107.
After filing an uncertain claim lawsuit as a declaratory judgment lawsuit, it is not possible to increase the amount according to Article 107/2 of the Code of Civil Procedure upon the determination of the claim during the trial. Because the aforementioned provision can only be applied if the uncertain claim lawsuit is filed as a performance lawsuit by specifying the amount. However, after the claim is determined through the trial in the uncertain claim declaratory judgment lawsuit, the collection of the claim can be requested by completely amending the lawsuit. The difference between filing an uncertain claim lawsuit as a declaratory judgment lawsuit and then converting it into a performance lawsuit through amendment, and filing the lawsuit for a specific amount, is evident in the starting point of interest. When an uncertain claim lawsuit is filed as a declaratory judgment lawsuit, the starting point of interest should be the date of amendment where the claims are requested as a figure.
According to the reasoning of Article 107 of the Code of Civil Procedure, it is possible to file an uncertain claim lawsuit as a partial performance lawsuit along with a comprehensive determination lawsuit. Therefore, in an uncertain claim lawsuit, in addition to the collection of a certain amount, the determination of the remaining amount can be requested, and when determined during the trial, the remaining amount can also be demanded. The difference from a full performance lawsuit is that instead of demanding the amount that can be determined, a partial amount can be demanded. For example, when a creditor files an uncertain claim lawsuit for an uncertain receivable, and demands collection for 100.00 TL and determination of the remaining amount, this is referred to as a partial performance comprehensive determination lawsuit. This is because the creditor has made a demand for a hypothetical amount instead of making the amount that can be determined from the records of the employer or official institution the subject of the lawsuit. The difference between this lawsuit and a partial lawsuit is that the creditor makes demands by referring to an uncertain claim lawsuit without stating that they have filed a partial lawsuit. As explained above, if the creditor makes a claim stating that they are filing a partial claim for an uncertain debt, or if partial claims are made without mentioning an uncertain debt, the lawsuit is considered to have been filed as a partial claim. The statute of limitations is interrupted for the entire debt at the moment the partial performance and total determination lawsuit is filed. However, there is a difference from an uncertain debt lawsuit for collection purposes in terms of the commencement of interest. The date of the lawsuit should be accepted as the commencement of interest for the amount in question. Since only the determination of the remaining part of the debt has been requested, interest should be awarded from the date the determined balance amount is requested later. In the concrete case, the dispute between the parties is whether the periods during which the plaintiff worker worked in a seasonal status before being hired into a permanent position in 2001 should be taken into account. In 2001, due to the adjustment problem during the recruitment process, the determination of the daily wages that could be earned during the period in question and the determination of the wage difference, bonus difference, additional payment difference and wear and tear premium difference claims cannot be expected from the worker at the stage of filing the lawsuit. In this regard, the calculation was made by obtaining an expert calculation report based on the workplace personnel file, payrolls and employer records, and the court’s finding that the case is an uncertain claim case is consistent with the file contents.
On the other hand, it was emphasized in the lawsuit petition that an uncertain claim lawsuit was filed, and a claim of 1000.00 TL was made for now, by separating it into the labor claims subject to the lawsuit. After the accounting report received during the trial, the plaintiff’s attorney submitted a petition for an increase in the claim, emphasizing the uncertain claim lawsuit. When evaluated with the form of the claim and the amount requested in the lawsuit petition, it should be accepted that the lawsuit was filed as a partial performance and total determination lawsuit, which is one of the types of uncertain claim lawsuits. Because instead of requesting the minimum amount of the claim that the plaintiff could determine in line with their claims, they made requests by determining a partial amount. In this case, the judgment should be made according to the results of a partial performance and total determination lawsuit, which is one of the types of uncertain claim lawsuits. Due to the nature of the lawsuit, it is appropriate to accept that the statute of limitations was interrupted on the date of the lawsuit for the entire claim. However, unlike an uncertain claim lawsuit for collection purposes, interest should be calculated on the claims requested with the petition for an increase in the claim from the date the said petition was submitted to the court. The court’s decision to award interest from the date of the lawsuit for the entire amount of the awarded receivables is erroneous, and the decision should be overturned on this ground.
The case was overturned and returned to the lower court, and after a retrial, the court upheld its previous decision.
After the General Assembly of Law examined the case and determined that the appeal against the decision was filed within the time limit, and after reviewing the documents in the file, the following was considered:
Decision: The lawsuit concerns the claim for the collection of wages, contractual and legal additional payments, and wear and tear premium differences, determined according to the degree and grade to be determined by taking into account the service period spent as a seasonal worker before being transferred to the permanent staff. The plaintiff’s attorney claimed that his client, who was working as a seasonal worker at a workplace belonging to the former General Directorate of Village Services and was hired as a permanent employee in 2001, was not given the full salary and grade during the permanent employment process, and that his salary was set lower than expected, resulting in insufficient social benefits. Therefore, he requested and sued for a total of 1000 TL in difference in wages, consisting of 750 TL in salary difference, 100 TL in contractual additional payment difference, 100 TL in statutory additional payment difference, and 50 TL in wear and tear premium difference, to be collected from the defendant. The defendant’s attorney requested the dismissal of the case, stating that the plaintiff’s claims were time-barred and that his client, the municipality, did not have standing as a party to the case. The court ruled in favor of the plaintiff, stating that the difference in labor costs requested by the plaintiff was disputed at the time the lawsuit was filed and its amount was determined by an expert report, therefore the lawsuit could be filed as an uncertain claim lawsuit, and the difference in wages should be awarded according to the calculations in the expert report used as the basis for the judgment. Upon the appeal of the defendant Sakarya Metropolitan Municipality’s representative, the decision was overturned for the reasons explained in the heading section above. The court, reiterating its previous reasoning, stated that, as stipulated in Article 107 of the Code of Civil Procedure (HMK) No. 6100, the plaintiff may file an uncertain claim lawsuit by specifying a minimum amount if they cannot determine the outcome of their claim; that since the reversal decision accepted that the lawsuit was an uncertain claim lawsuit, and since the regulation was made to protect the plaintiff’s legal interest with this type of lawsuit, the interest commencement date should also be the date of the lawsuit; that this acceptance is in accordance with the regulation and reasoning of the law; that furthermore, that the files with the same subject matter and reasons, and with the same decision, were upheld on the same day, while these files with a single case number were reversed; and that the Supreme Court, which is responsible for ensuring the unity of jurisprudence, made this decision without justifying this difference. The decision to resist was appealed by the representative of the defendant Sakarya Metropolitan Municipality. The dispute, which came before the General Assembly of Law through the appeal process, concerns whether the interest commencement date for the entire amount of the claim, including the increased amounts, is the date of the lawsuit or the date of the lawsuit for the portions requested in the lawsuit and the date of the increase in the claim for the increased portions.
The case, which was initially filed for a total of 1,000 TL with the reservation of rights regarding excess amounts and the separation of the claims in question, is disputed as being an uncertain claim lawsuit.
To resolve the dispute, it is first useful to discuss the legal nature of an uncertain claim lawsuit.
With Article 107 of the Code of Civil Procedure No. 6100, which entered into force on 01.10.2011,
a new type of lawsuit, namely the lawsuit for uncertain claims and determination, which was not included in the repealed Code of Civil Procedure No. 1086, has been accepted.
Article 107 of Law No. 6100 states:
“1-In cases where it is not expected or impossible for the creditor to determine the amount or value of the claim fully and precisely at the time the lawsuit is filed, the creditor may file an uncertain claim lawsuit by specifying the legal relationship and a minimum amount or value.
2-When it becomes possible to determine the amount or value of the claim fully and precisely as a result of the information provided by the opposing party or the investigation, the plaintiff may increase the claim he/she stated at the beginning of the lawsuit without being subject to the prohibition of expanding the claim.
3-In addition, in cases where a partial performance lawsuit can be filed, a declaratory action can also be filed, and in this case, it is accepted that there is a legal interest.” This provision regulates the lawsuit for uncertain claims. This article, which was not included in the government draft, was enacted and legalized by the Turkish Grand National Assembly Justice Committee on the grounds that it was necessary to eliminate the difficulties faced by a person seeking redress in the legal system regarding a claim whose amount or value cannot be fully determined from the outset, and to ensure that the freedom to seek redress is protected as broadly as possible. The justification for the article states: “Even though a person seeking redress may know and be able to determine, at a minimum, the legal relationship they are claiming, the party involved, and the amount they will claim as a result of this relationship, they may not be able to fully determine the total amount of their claim. This is especially true in compensation claims where the damage cannot be determined beforehand, but can only be fully determined after an investigation. Within our legal system, there are many difficulties for a person facing such a situation in terms of seeking redress. Firstly, they are asked to file a lawsuit for a claim they do not actually know the full amount of, and furthermore, if it is later revealed that they are owed a larger amount than their initial claim, they can assert this claim within the framework of the prohibition against expanding the lawsuit. In such a situation, forcing someone to file a lawsuit for a truly unknown claim is a path that cannot be explained by the essence of seeking redress, and there is also an obstacle such as the party encountering a prohibition even though it is not their own negligence or fault. However, the freedom to seek redress does not allow for such a limitation and unrealistic behavior.” It should aim not to coerce, but to protect the person whose rights have been violated or are under threat of violation, as broadly as possible. Recently, both in comparative law and Turkish law, the concept of “effective legal protection” has emerged, going beyond mere legal protection, which necessitates this. Moreover, imposing certain limitations when filing a lawsuit for an uncertain amount or value of a claim would lead to new claims within the lawsuit or new lawsuits outside of it, creating a situation contrary to procedural economy. Furthermore, it is a fact that the classic partial lawsuit does not provide a complete solution for an unknown amount or value of a claim. Considering that provisions regarding uncertain claims and declaratory actions are also found in comparative law, in cases where the creditor cannot be expected to determine the amount or value of the claim fully and definitively at the time the lawsuit is filed, or where this is impossible, the creditor may file an uncertain claim lawsuit by specifying a minimum amount or value in relation to the legal relationship. It has been accepted. For the creditor to file such a lawsuit, it must be impossible for them to determine the amount or value of the lawsuit precisely and accurately, or this must be objectively impossible. If the amount of the lawsuit is known or can be determined, such a lawsuit cannot be filed. Because, as in every lawsuit, a legal interest will be sought here as well, and in such a case, it cannot be said that there is a legal interest. Especially when the new provisions regarding partial lawsuits are taken into account and evaluated together, resorting to this method in cases where it is possible to determine it from the outset is unacceptable. In the case of filing an uncertain claim lawsuit or a declaratory judgment lawsuit, even if the creditor does not specify the entire amount, they must concretely state the legal relationship at the beginning of the lawsuit and indicate the minimum amount to the extent that they can determine it.
The second paragraph of the article states that in cases where an uncertain claim or a declaratory judgment lawsuit can be filed, the creditor may increase their claim without being affected by the prohibition against expanding the claim, once the amount or value is determined. As a rule, increasing the amount or value initially stated in a lawsuit is subject to the prohibition against expanding the claim. The purpose of this is to prevent the plaintiff from abusing their right when filing the lawsuit, to encourage them to act more diligently, and to avoid unnecessarily prolonging the proceedings. However, for a claim whose amount or value cannot be fully determined from the outset, the plaintiff cannot be accused of such negligence or fault. Therefore, if, after filing an uncertain claim or a declaratory judgment lawsuit, the claim becomes certain in the later stages of the proceedings due to information and evidence provided by the opposing party, or as a result of the examination of evidence and investigative procedures (for example, after expert examination or on-site inspection), the plaintiff may increase their claim, which they stated at the beginning of the lawsuit, without being subject to the prohibition against expanding the claim. The plaintiff may request that the proceedings continue based on the new amount simply by making a request, without being subject to any limitations or prohibitions. Undoubtedly, if the new claim arising after the debt has become certain is incompletely stated, a subsequent request for an increase will face the prohibition against expanding the claim. Because, in this case, it is not uncertainty but a situation arising from the plaintiff’s own negligence. The proposition that “a declaratory judgment cannot be filed where a performance action can be filed” is invalid in light of the capacity reached by the freedom to seek justice and the content of the legal interest condition. It is generally accepted that in cases where the statute of limitations is about to expire in cases of uncertain amounts of claims, only a declaratory judgment or a partial performance action together with a declaratory judgment can be filed. For example, the plaintiff can and should file a lawsuit aiming to determine the amount of the debt and the debtor’s liability instead of collecting compensation. This lawsuit will interrupt the statute of limitations, the judgment obtained in the lawsuit can be enforced through general attachment, and in case of objection, the enforcement-denial compensation sanction, which the debtor may not be able to afford, may come into play. On the other hand, a declaratory judgment lawsuit is more advantageous for the parties than a performance lawsuit in terms of litigation economy. A declaratory judgment lawsuit also has a character that facilitates reconciliation between the parties. The creditor has the options of filing only a performance lawsuit, only a declaratory judgment lawsuit, or a partial performance lawsuit together with a comprehensive declaratory judgment lawsuit. These options, which are inherent in the freedom to seek justice (Constitution Article 36, ECHR Article 6), cannot be prohibited by law or case law. The model recognizes these options as a procedural right for the creditor. In essence, regardless of whether it is full or partial, every performance lawsuit has a comprehensive declaratory judgment element at its core. In other words, behind every situation arranged in the performance judgment, there is a necessary preliminary determination that includes the determination of responsibility. In the model envisioned in the draft, the fact that a declaratory judgment lawsuit can seek not only the determination of legal relationships but also the determination of the right, and that the condition of legal interest is deemed to have been fulfilled in cases where a performance lawsuit can be filed, strengthens the solution (paradigm). It is undoubtedly true that the material and formal legal consequences arising from the filing of a lawsuit (interruption of the statute of limitations, etc.) will be equally valid in declaratory judgment lawsuits. With this proposal, a necessary procedural possibility will be added to our legal system.” The purpose of the inclusion of the uncertain claim lawsuit in the Law has been explained in detail by making the following explanations.
Therefore, in order for a lawsuit to be filed as an uncertain claim lawsuit, it is necessary that the amount or value of the claim in dispute cannot be determined fully and definitively by the plaintiff as of the date the lawsuit is filed. The inability to determine must be based on the fact that, despite the plaintiff’s due diligence, it is not expected of him to determine the amount or value, or on objective impossibility. If these conditions are met, it will be possible for the plaintiff to file his lawsuit as an uncertain claim lawsuit within the scope of Article 107 of the Code of Civil Procedure No. 6100; the plaintiff will benefit from the opportunities provided by this type of lawsuit. One of the consequences of filing a lawsuit is the interruption of the statute of limitations. The statute of limitations will be interrupted for the amount of the claim stated in the lawsuit petition. In an uncertain claim lawsuit, the question is whether the statute of limitations is interrupted for the provisional claim amount stated in the lawsuit petition or for the entire final claim amount whose amount is determined in full as a result of the trial. There is no explicit provision in the Code of Civil Procedure No. 6100 regarding whether the lawsuit will be dismissed on the date of the lawsuit.
The reason for regulating the uncertain claim lawsuit is that when the plaintiff wishes to sue for the entire amount of the claim, it is impossible or unreasonable for them to determine the amount of the claim. The plaintiff’s aim in filing an uncertain claim lawsuit is to sue for the entire amount of the claim and to ensure that a decision is made on the entire amount. It is not to sue for only a part of the claim, as in filing a partial lawsuit. The outcome of the claim stated in the petition is also temporary; the main aim when filing the lawsuit is to have the amount of the claim determined and decided upon accordingly. In an uncertain claim lawsuit, the plaintiff is given the opportunity to file such a lawsuit in an exceptional situation where it is impossible or unreasonable for them to determine the amount of the claim. Since the legislator has granted the possibility of filing an uncertain claim lawsuit when it is impossible or unreasonable to determine the amount of the claim, the results of such a lawsuit should also be evaluated in accordance with the purpose. Therefore, regardless of the exact date on which the claim is specified, the statute of limitations should be considered interrupted by the amount of the definitive claim on the date the lawsuit is filed (Pekcanıtez, H.: Uncertain Claim Lawsuit (HMK m.107), Ankara 2011, p. 59).
The plaintiff who files an uncertain claim lawsuit will notify the court of the definitive claim after the claim becomes ascertainable. This determination may be made after the exchange of pleadings, i.e., after the defendant submits its evidence to the court, or it may be made during the investigation, especially during the examination of the evidence. In any case, although the determination of the claim can be made until the end of the investigation, there is no obstacle to making this determination at an earlier stage. On the other hand, considering the purpose of the uncertain claim lawsuit in the Law and the nature of the lawsuit, in cases where there is no default before the date of the lawsuit, since the default occurs on the date the lawsuit is filed for the entire amount of the claim determined in full and definitely as a result of the trial in the uncertain claim lawsuit, interest should also be awarded from the date of the lawsuit. In the uncertain claim lawsuit, the statute of limitations is interrupted from the date the lawsuit is filed for the entire amount of the claim, and the claim for interest due to default can also be requested from the date the lawsuit is filed. In order to claim the remaining part of the claim, it is not necessary to apply for the permission of the defendant or the amendment procedure (Pekcanıtez, H.: Uncertain Claim Lawsuit in Labor Claims, Prof. Dr. Turhan Esener Festschrift, 1st International Labor Law Congress, p. 224). In light of the explanations made above, as for the evaluation of the concrete case; The plaintiff’s attorney,
claiming that the period during which his client worked as a seasonal worker at the former General Directorate of Village Services was not taken into account in the grade and rank adjustment when he was hired in 2001, requested the collection of the difference in wages from the defendant based on the grade and rank to be determined by taking into account the service period spent as a seasonal worker, by filing an uncertain claim lawsuit. The court accepted that the claims in question were disputed as of the date the lawsuit was filed and that the amount was determined by an expert report, therefore, the lawsuit could be filed as an uncertain claim lawsuit,
and the lawsuit was heard and concluded in accordance with this acceptance; it was accepted that the statute of limitations was interrupted on the date of the lawsuit for all claims, and interest was applied to all claims, including the increased amounts, from the date of the lawsuit. The Special Chamber found that the court’s decision to hear and conclude the case as an uncertain claim lawsuit was correct,
and this matter was not made a reason for reversal. Therefore, there is no disagreement between the court and the Special Chamber regarding the fact that the case is an uncertain claim case within the meaning of Article 107 of the Code of Civil Procedure No. 6100. In this case, since the case is an uncertain claim case, the material and formal legal consequences (interruption of the statute of limitations and others) that will arise from the filing of this case should also be valid for this case, and it was correct for the court to apply interest from the date of the lawsuit to all the claims, including the increased amounts, by submitting a petition for an increase in the claim. Although it was argued during the discussions in the General Assembly of Law that the plaintiff filed a lawsuit based on nominal amounts instead of the minimum amount that could be determined, and that in this case the lawsuit should be characterized as a “partial performance, total determination” lawsuit as stated in the reasoning of Article 107 of the Code of Civil Procedure No. 6100, and that in this case, interest should be awarded on the increased portions of the claim from the date of the increase in the claim, and that therefore the Special Chamber’s reversal decision is correct and the resistance decision should be reversed, this view was not adopted by the majority of the Assembly. Therefore, the resistance decision should be upheld for the reasons explained above.
Result: The appeal of the defendant Sakarya Metropolitan Municipality’s representative is rejected, and the resistance decision is UPHELD.
The fee of (671.74 TL) detailed below shall be collected from the appellant.
The decision was made by majority vote in the second hearing on 28.02.2018, with no possibility of correction.