General Assembly of the Law 2017/1255 E. , 2020/423 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
1. At the end of the trial between the parties for the “ecrimisil” case, Antalya Dec. 5. The decision on the partial acceptance of the case issued by the Court of First Instance of the Supreme Court of Cassation on the appeal of the plaintiff’s deputy 1. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the deputy plaintiff.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. The plaintiff … the Deputy General Directorate filed a lawsuit; parcel of immovable property which belongs to the entire institution No. 13 No. 6507 Island 3 380 M2 parcel of the immovable if the respondent is currently in the occupation of the part of the defendant and the defendant’s payment that is being used by asserting that while you don’t pay adequate notice is sent by parcel No. 13 on the surplus between 2006 and 2011 without prejudice to its rights to immovable, Parcel No. 3 for immovable between 2009 and 2011, a total of 2.225,00 TL ecrimisil of Law No. 6183 on the receivables process needed since the end of the period the interest rate, with interest and sued the decision to demand the collection, according to the report prompt, expert 5.156 received during trial,61 TL has been reclaimed.
The Defendant’s Answer:
5. The defendant did not submit a response petition within the time limit and asked for the case to be dismissed during the trial.
The Decision of the Court of First Instance:
6. Antalya 5. The decision of the Court of First Instance dated 27.12.2012 and dated 2011/438 E., 2012/645 K. by its numbered decision; the basis of the case is Article 995 of the Turkish Civil Code. although there is an article 75 of the State Procurement Law No. 2886. in the article, it is regulated how to determine the ecrimisil to be taken for the real estate of the foundation, the administration cannot ask for more ecrimisil than the ecrimisil determined by the commission it has created in contrast to this regulation, the task assigned to the administration in this regard is to determine the amount of ecrimisil and it cannot be mentioned that it gives the task of preparing a compromise proposal, if this was the case, the law should clearly regulate it, 27.02.2008 added on to the matter of the real estate Foundation and backwards for the five-year occupation of the item to be tapped is arranged after the date of effect for five years ago now 27.02.2003 determined by the committee demanded payment of the amount cannot be more than adequate, more than adequate pay ecrimisil determined through an expert witness in court, as determined by the commission, though the commission has determined that the amount should be judged on, the lawsuit was partially accepted on the grounds that the plaintiff’s request for collection by filing a lawsuit, and not in accordance with the provisions of Law No. 6183, would not change this situation, and it was decided to reject the amount requested in excess and the amount increased by reclamation.
The Decision to Spoil the Private Apartment:
7. Against the above-mentioned decision of the court, the acting plaintiff filed an appeal.
8. Appeal to the Supreme Court 1. Because it is not rejected by the Department of law within the statutory period, the plaintiff’s attorney to request the correction of the decision of the mandate of the date of notification in the notification of the reasoned decision was written wrong, and to be understood in the Times of Appeals, No. 48/88 16.10.1940 date and case law in accordance with the decision to merge the request for the correction of the decision of the examination of the appeal request has been considered and as a result, Private Apartment 2013/16600 E. dated 18.02.2014, 2014/3491 K. by his numbered decision;
“… The case is related to the ecrimisil request.
The plaintiff claimed that the defendant occupied the entire 6507 island 3 parcels owned by kayden and the 380 m2 area of the 6577 island 13 parcels owned by Kayden for a total of TL 2.225 in ecrimisil, claiming that the defendant occupied the area of 380 m2 without a justified and valid reason. Later, he requested 5.156TL ecrimisil with a reclamation petition.
75 of the State Procurement Law No. 2886, according to which the court will determine the amount of compensation to be received from those who occupy the foundation’s real estate. and it was decided to partially accept the case on the grounds that it is regulated by Articles 79 / C, the administration cannot request a larger amount of ecrimisil than the ecrimisil determined by the commission it created, contrary to the legal regulation.
As it is known, not only in teaching both judicial and adequate payment as set forth in the application, in other words, compensation for wrongful occupation, zilyet non-Malik, malik, non-twisted zilyet can request compensation from that, 22/4 08.03.1950 date, Case No. the decision to merge; fuzuli’s occupation of the sides cannot be likened to a lease contract that he created to fit together with their will, by nature, should be regarded as an unfair action that would have to be compensated the losses due to unjust occupation was emphasized. Since Ecrimisil is a special form of damage relief, which is characterized as compensation for unjustified occupation, the least of it is damage in exchange for rental income.
Therefore, the positive damage caused by the normal use as a result of unfair occupation, as well as the positive damage caused by use, as well as the benefit (negative damage) that the owner or owner lacks, determine the scope of ecrimicillin. Unfair occupation is an unfair action (YHGK’s 25.02.2004 day and 2004/1-120-96 decision no.).
In a concrete dispute, the ecrimisil notice sent to the defendant by the plaintiff’s Office is of an urgent nature, and the ecrimisil assessed by the commission by the defendant’s failure to comply with the request has not been paid. In addition, the plaintiff’s administration opened the case at hand at the request of ecrimisil and duly corrected his case over the amount determined upon the expert review commissioned by the court. There is no legal regulation preventing the plaintiff from applying to the court and seeking real damages caused by unfair occupation with a lawsuit petition or a reclamation petition. In that case, it is necessary to establish a positive or negative judgment in this direction in accordance with the plaintiff’s petition for compulsory correction, while it is not correct to establish a judgment in writing with an otherwise thought …”the judgment was overturned on the grounds of “.
The Decision to Resist:
9. Antalya 5. The decision of the Court of First Instance dated 26.06.2014 and dated 2014/255 E., 2014/280 K. the decision numbered by the foundation to immovable property ecrimisil how well defined are regulated by law where the amount determined according to the law of administration of an offer, or in nature, not judicial icap required to be able to control the amount that may be where the determination of the law in a way that transcends the will of the legislator determined to ecrimisil can not be judged on the amount of the administration, the administration also requested has revealed his will by determining what is adequate, as the amount of payment, the act of determining an amount on it is contrary to the purpose of, moreover, the court gave the same reasons on 08.11.2012 and 2012/526 E., 2012/470 K. the Court of Cassation of decision No. 1. The date of the Law Department is 20.05.2013 and is 2013/5428 E., 2013/8064 K. the decision to resist was made on the grounds that it was approved by the numbered decision.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the deputy plaintiff within the time limit.
II. DISPUTE
11. The dispute that came before the General Assembly of Law by way of resistance; in the case filed with the request of ecrimisil about the real estate of the foundation, the amount of ecrimisil determined as a result of the discovery made by the court is determined by Article 75 of the State Procurement Law No. 2886 before the case. if the amount of compensation determined by the commission established by the administration in accordance with the article exceeds the amount requested from the defendant by notification, whether this excess amount can be requested by reclamation is related to whether the notification sent is binding on the plaintiff.
III. reason
12. The case is related to the ecrimisil request and it is useful to briefly explain the legal regulations and concepts related to the subject.
13. The concept of ecrimisil, which is also used in today’s law by transferring it from Mecelle, is a concept that has not lost its relevance. Ecrimisil, which is used in the old law as “equivalent to the value of precedent goods”, is a special form of loss recovery that is characterized as compensation for unfair occupation. As stated in both teaching and judicial practices, it is a kind of compensation that the rightholder can ask for from a malicious person.
14. In ecrimisil, there is a malicious occupation and use of a property without the permission and consent of the rightholder.
15. The Supreme Court Case Law No. 22/4 08.03.1950 date and Major General of the board of the decision to merge; the sides of the occupation with each other and to their proper Fuzuli that he created will be likened to a lease contract cannot, by nature, should be considered a tort, and unjust occupied his real estate, which is used as someone else’s malicious damage arising from the right hand of nobody being held in real estate, and obtained, with the consequences that I neglected to compensate the taxpayer or obtain emphasised that it is.
16. As a matter of fact, 995 of the Turkish Civil Code (TMK). in the first paragraph of the article, well-intentioned non-possessor back to what he was unfair because he is obliged to give to the right owner which have achieved or failed to achieve the damages and shall not be obliged to pay compensation in exchange for the products.
17. The least of this damage is the damage that is equivalent to rental income. However, the damage caused by unfair occupation is not always as much as the damage that is equivalent to rental income, but can be much more extensive. Therefore, the scope of ecrimicillin determines the positive harm caused by unfair occupation in the form of obsolescence as a result of normal or despised use, and the negative harm defined as the benefit deprived of the owner or owner.
18. On the other hand, the real estate subject to the lawsuit is registered in the title deed on behalf of the Muratpaşa Foundation, and the lawsuit has been filed by the General Directorate of Foundations.
19. As is known, upon the entry into force of the Law on Foundations dated 20.02.2008 and numbered 5737, published in the Official Gazette dated 27.02.2008, in accordance with Article 79 / c, Article 75 of the State Procurement Law No. 2886. a new sentence has been added to article 75 entitled “Ecrimisil and Eviction” accordingly. the first paragraph of the article;
“The state or private ownership and governed by and under the control and ownership of immovable property belonging to the General Directorate of foundations foundations fused represented by immovable property, upon the real and legal persons by occupation, fuzuli Sagil from by consulting the places in Article 9 of this law, the administration of three competent or expert on the subject of real estate and valuation backwards from the date of such determination by the commission not exceeding five years are identified and adequate payment is requested to be appreciated. In order for ecrimisil to be requested, the Treasury does not have to have suffered any damage due to the occupation, and the fault of the fuzuli shagil is not sought”.
20. Article 74 of the State Procurement Code No. 2886. article 4 of the Regulation on the Administration of Treasury Real Estate issued on the basis of the authority granted by the Article. in paragraph (d) of article (d), ecrimisil is defined and stated that treasury real estate refers to the compensation requested by the administration, regardless of whether the administration has suffered a loss or whether the occupier is defective, due to the occupation or saving of real or legal persons without the permission of the administration.
21. In paragraph (e) of this regulation, it is stated that the definition of the fuzuli shagil refers to natural or legal persons who possess, hold or in any way use or save this property outside the permission of the competent administration, regardless of whether it is defective or not, the possession of Treasury real estate.
22. As can be understood from these definitions, the event that gives rise to the receipt of ecrimisil in public law is the invasion of fuzuli, which is not based on any valid legal reason, of publicly owned immovable property.
23. It should be noted that the goods owned by the administration are legally different from the goods dec private ownership, as well as differ among themselves. Again, the procedures for obtaining, disposing of these goods and using them are also subject to different provisions.
24. The use of public property by persons is either in the form of general use or within the framework of special use procedures by obtaining prior permission. In order for a person to make private use of public property, he must be in a legally valid relationship with the administration through a license, contract or concession. The permission granted for private use of public goods is temporary, qualified and paid. In other words, a person who wants to take advantage of public property privately in a way that prevents others from taking advantage of it has to pay for it.
25. For all these reasons, Article 75 of the Law No. 2886. in the article, it is stipulated that real estate owned by the State or under the provision and protection of the State, as well as real estate and legal entities occupying real estate belonging to the General Directorate of Foundations and the mazbut foundations that it manages and represents, will be asked for compensation from individuals and legal entities.
26. According to this regulation, the General Directorate of Treasury or Foundations does not have to apply to the court and make a decision in order to request ecrimisil. It has become possible to request the ecrimicillin appreciated by the commission to be created from the fuzuli shagil with a notification. If the amount determined by the Commission is not paid without consent, the administration has the opportunity to collect it in accordance with the provisions of the Law No. 6183 on the Collection Procedure of Public Receivables, which it will receive in accordance with the second paragraph of the article, in accordance with the provisions of the Law. Also, in this paragraph, an arrangement has been made in favor of fuzuli shagil and it is stipulated that twenty percent discount will be applied if there is no objection to the compensation and fifteen percent discount will be applied if it is paid in advance.
27. In a concrete case, the amount of compensation was assessed by creating a commission administratively, and the lawsuit was filed after a notice was sent to collect this amount from the defendant, who is a fugitive, and it was not paid.
28. As of this moment, during the negotiations at the General Assembly of the Law, Article 75 of the Law No. 2886. according to the procedure in the article, the amount of ecrimisil has been determined by the commission and after the fuzuli shagil has been requested, the issue of whether the administration can request ecrimisil by filing a lawsuit in court in accordance with the general provisions has been discussed.
29. In public law the money that you will receive adequate payment and still be appreciated as desired by the administration appointed by the administration and public power on the basis of the Law No. 6183 on the procedure of collection of public receivables has the possibility to be charged under, although the main source of occupation of TMC 4721 No. 995. it is derived from the substance. In accordance with the said article, fuzuli shagil is obliged to pay compensation in exchange for damages caused to the rightholder due to the fact that he has unjustly detained what he is obliged to return, as well as for products that he has acquired or neglected to acquire.
30. Article 75 of the Law No. 2886. although the possibility of collecting compensation has been provided to the administration in the article by an administrative action and in a shorter time without going to the path of litigation, this opportunity brought for the administration should not be interpreted as a necessity. Because there is no clear provision of the law that prevents the administration from resorting to a lawsuit. Since there is no legal regulation to the contrary, the administration’s TMK 995. based on its article, it is always possible to claim compensation arising from the occupation in the form of an unfair action from the court through a lawsuit. If it is determined that the actual damage of the administration applying for the remedy is more than the amount requested by the notice, there is also no legal regulation that will prevent the administration from requesting the actual amount of damage.
31. This situation is related to the exercise of the right to sue, which is one of the fundamental rights, and is covered by Article 36 of the Constitution. according to the article, everyone has the right to a fair trial with a claim and defense as a plaintiff or defendant before the judicial authorities, using legitimate means and means. The aforementioned rights through litigation article secured with the freedom to seek, in addition to being a fundamental right, the other in ensuring the most effective utilization and protection of their fundamental rights and freedoms constitutes one of the required safeguards.
32. As a matter of fact, the plaintiff … the General Directorate also initiated administrative proceedings, but in the notification it sent to the defendant, it warned that it would resort to legal remedies if the ecrimisil determined by the commission was not paid.
33. In these circumstances, to file a lawsuit in accordance with the general provisions in judicial administration in the notice of the court who choose the path connected with the actual harm caused by wrongful actions without adequate amount of payment may request from the court as such, accordingly, an amount according to the amount of payment is requested with adequate notice if you want to be taken under the provision of law by means of its breeding that may, by a majority of the General Assembly was adopted.
34. During the negotiations at the General Assembly of the Law, the administration is not obliged to collect the compensation determined by the commission after the notification of the notification in accordance with the provisions of Law No. 6183, it may also request its collection by filing a lawsuit with the court, but in accordance with Law No. 75 of Law No. 2886. according to the article along a certain path with the administrative process initiated, you will receive after determining the amount of a public nature, is connected with the administration of this amount, is to be made by the court after the case is opened now, if the correct method is determined by monitoring the administration of this amount from the inspection that the determination of whether it is, therefore, highly relevant to resist the decision was given by the Local Court has expressed the opinion that if this opinion had been adopted by a majority of the General Board of the law.
35. In that case, a decision should be made on the reclamation request of the plaintiff’s attorney in accordance with the decision to overturn the Special Chamber adopted by the General Assembly of the Law, while resisting the previous decision is contrary to the procedure and law.
36. Therefore, the decision to resist must be overturned.
IV. result :
For the reasons described;
Provisional Article 3 of the Civil Procedure Code No. 6100 for the reasons shown in the decision of the Special Chamber to overturn the decision of the plaintiff’s deputy to resist the acceptance of appeals and appeals of the Civil Procedure Code No. 6100. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance CORRUPTION,
Upon request, the advance fee for the appeal will be returned to the depositor,
440/III-1 of the same Law. in accordance with the article, the decision was finally decided by a majority of votes on 17.06.2020, with the correction path closed.
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