Absence of a Claim Requirement Due to the Fact that the Expense Advance has Not been Deposited

T.C.

SUPREME

12. law office

E. 2016/9533

K. 2016/19526

T. 22.9.2016

* ABSENCE OF A CLAIM REQUIREMENT DUE TO THE FACT THAT THE EXPENSE ADVANCE HAS NOT BEEN DEPOSITED (It Should Be Clearly Determined What the Expense Advance Consists of With the Exact Two-Week Period To Be Completed, and the Party Should be Warned About the Legal Consequences of Not Depositing the Advance / If the Case Requirement Is Not Eliminated During This Period, But Then the Case Can Be Dismissed Due to the Absence of a Claim Requirement)

* TERMINATION OF THE TENDER (IIK by the Court. 134/2. According to the Article, the Hearing Is Opened and the Parties Are Invited and Their Statements Are Received, If Any, The Evidence They Will Show Is Collected, The File Is Examined and the Conclusion is Not Correct)

* MISSING AN EXPENSE ADVANCE (It Should Be Clearly Determined What the Expense Advance Consists of With the Exact Two-Week Period To Be Completed, and the Party Should be Warned About the Legal Consequences of Not Investing the Advance / If the Lack of a Claim Requirement Is Not Eliminated During This Period, But If So, The Case May Be Dismissed Due to the Absence of a Claim Requirement)

* GIVING AN EXACT TIME FOR COMPLETING THE EXPENSE ADVANCE (It Should Be Clearly Determined What the Expense Advance Consists of Along With the Exact Time and Warn the Party About the Legal Consequences of Not Investing the Advance / If the Lack of the Case Requirement Is Not Resolved Within This Time, But Then the Case May Be Dismissed Due to the Absence of the Case Requirement -It Is Incorrect to Decide to Dismiss the Case Due to the Absence of the Case Requirement Without Giving the Debtor the Correct Exact Time Due to the Absence of the Case Requirement)

2004/m.134

6100/m.114/g,115/2,120

SUMMARY : The case concerns the request for termination of the tender.

1-By the Court; Article 134/2 of the IIK. according to the article, it is not correct to go to the conclusion by opening a hearing and examining the file without inviting the parties and receiving their statements, collecting the evidence they will show, if any, and it requires distortion.

2-If it is understood that the court’s expense advance is missing, HMK’s 120/2 is required for completion. according to the article, it should be clearly determined what the expense advance consists of with the exact two-week period to be given, and the party should be warned about the legal consequences of not depositing the advance. If the deficiency of the case requirement is not corrected within this period, but only if it is, the case should be dismissed in due course due to the absence of the case requirement.It is incorrect to decide to dismiss the case due to the absence of a case requirement without fulfilling the legal regulations specified by the court and giving the debtor a certain time in accordance with due process, and the decision had to be overturned in this respect.

CASE: Upon the request of the debtor for the examination of the appellant within the period of the court decision with the date and number written above, the file related to this work was sent from the scene to the apartment, 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 work was discussed and considered as necessary:

DECISION: It is understood that the debtor applied to the executive court with a request to terminate the tender, arguing that it was not done properly, and the complaint was rejected due to the absence of a case requirement due to the fact that the expense advance was not deposited, without a hearing by the court.

1-)Article 134/2 of the IIK. its article contains the provision “Upon request for termination of the tender, the executive court shall hold a hearing within 20 days from the date of the request and make the necessary decision even if the parties do not come”.

By the Court; Article 134/2 of the IIK. according to the article, it is not correct to reach a conclusion in writing by opening a hearing and examining the file before the parties are invited and their statements are received, and the evidence they will show, if any, is collected, is not correct and requires to be overturned.

2-) In Article 114/g of HMK No. 6100, the expense advance is regulated as a case condition. 115/2 of the Same Law. according to its article; “The court decides on the procedural rejection of the case if it finds a deficiency of the case requirement. However, if it is possible to eliminate the deficiency of the case requirement, it gives an exact time for this to be completed. If the deficiency of the case requirement has not been resolved within this period, it will reject the case due to the absence of the case requirement in due course.” Article 120 of the same law. articles; “The plaintiff must deposit the amount to be determined in the expense advance tariff to be issued by the Ministry of Justice every year with trial fees to the court teller when filing a lawsuit. If it is understood during the case that the advance is not sufficient, the court shall give the plaintiff a definite period of two weeks to complete this deficiency”.

If it is understood by the court that the expense advance is missing, HMK’s 120/2 is required for completion. according to the article, it should be clearly determined what the expense advance consists of with the exact two-week period to be given, and the party should be warned about the legal consequences of not depositing the advance. If the deficiency of the case requirement is not corrected within this period, but only if it is, the case should be dismissed in due course due to the absence of the case requirement.It is incorrect to decide to dismiss the case due to the absence of a case requirement without fulfilling the legal regulations specified by the court and giving the debtor a certain time in accordance with due process, and the decision had to be overturned in this respect.

CONCLUSION: For the reasons written in paragraphs (1) and (2) above of the court decision on the acceptance of the debtor’s appeals, IIK’s 366 and HUMK’s 428. in accordance with the articles (ON ITS DETERIORATION), the refund of the fee received in advance if requested was decided unanimously on 22.09.2016, with a clear way to correct the decision within 10 days from the notification of the decision.

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