Application Period Submission of the Attitude Petition During the Application Period, Evasion of the Appeal Period – Decision of the Court of Cassation

SUPREME COURT 12. law office
MAIN NUMBER : 2018/47
DECISION NO : 2018/6880

Regional justice above date and number writing in examination by the plaintiffs requested a decision by the court this term temyizen on work-related files have been sent to the apartment and rested for the audit report to file a claim held by a judge, and all the documents in the file is read and analysed, after it was thought that the nature of the business discussed :

Date 26.9.2004 judges of the courts of the District Courthouse and the court of First Instance No. 5235 organization, the law on powers and duties, in parallel with the execution and Bankruptcy Law No. 2004 of the correction of the decision by making changes in the provisions relating to appeal and appeal and appeal of the Bankruptcy Act reorganizes the provisions on temporary 18.3.2005 with the law enforcement and 5311 date added to 7.according to the article, the provisions of Law No. 5311 are applied for decisions made after 20.07.2016, when the Regional Courts of Justice began their duties.

342/3 of the Code of Civil Procedure No. 6100. in its article; “The petition of appeal, with the identity and signature of the applicant, if it carries records that will sufficiently clarify the decision applied for, even if there are no other considerations, it will not be rejected, 355. the necessary examination is carried out within the framework of the article.” according to the regulation, 355 of the same Law. in its article; “The examination is carried out limited to the reasons specified in the petition of appeal. However, if the district court of justice deems a violation of public order, it shall monitor it ex officio” the regulation has been included and 352/1. it is also stated in the article that the necessary decision will be made if the application conditions are not met or the reasons or grounds for the application are not shown at all.

In the concrete case, the decision made by the enforcement court was interpreted to the debtor’s attorney at the hearing dated 03.01.2017, the debtor’s attorney’s OFFICE 363. within the period in accordance with Article (i.e. on 12.01.2017), 342/3 of the CCP. it is observed that he filed the petition for the attitude to the period of appeal in accordance with the article, and the debtor’s attorney did not submit his petition containing the grounds of appeal within the 10-day period, even though the reasoned decision of the court of first instance was notified on 08.02.2017.

In this case, the work to be done by the district court of justice is 342/3 of the HMK.as stated in Article 355 of the HMK, without rejecting the petition of appeal. according to the article, it is to conduct limited examinations with public order. If no violation of public order is detected in the examined court decision, it will be necessary to decide on the rejection of the appeal request on the merits in accordance with Article 353/1-b-1 of the CCP, since an examination of the merits of the work will be conducted.

Therefore, although the district court of justice filed a petition for the duration of the appeal, it was determined that there was no violation of public order in the decision of the court of first instance under review, according to 353/1-b-1 of the CCP. according to the article, while the request for appeal should be rejected on the merits, 352 of the CCP. according to the article, the refusal from the procedure is unjustified.

CONCLUSION : Gaziantep Regional Court of Justice 12. The Law Department’s 25/04/2017 date and 2017/1116 E. – 2017/1101 K. for the reasons written above of the decision No. 364/2 of the IIK, amended by the Law No. 5311. article 373/2 of the HMK No. 6100, which must be applied by sending. in accordance with the articles (to be OVERTURNED), it was unanimously decided on the day of 27/06/2018 that there was no place for the examination of appeals based on the reason for the cancellation, the file should be sent to the Regional Court of Justice, which made the decision.

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