the 1-Year Entitlement Reduction Period That Operates From the Moment of Learning to File a Claim for Refusal of Paternity – Does It Start Only With Suspicion? Supreme Court Decision

T.C. SUPREME

8.law office
Basis: 2017/16734
Verdict: 2018/252
Decision Date: 11.01.2018

REFUSAL OF THE FAMILY BOND LAWSUIT – THE ONE-YEAR REDUCTION PERIOD WILL BEGIN AS OF THE DATE OF LEARNING – DOUBT CANNOT BE CONSIDERED SUFFICIENT IN TERMS OF LEARNING – IT MUST BE ACCEPTED THAT THE CASE WAS OPENED WITHIN THE TIME LIMIT – VIOLATION OF THE PROVISION

SUMMARY: The case is related to the request for rejection of the lineage bond. When it is assessed that the plaintiff wants to determine whether the child is his or her own and to determine the parentage, but there has not been a previous examination in this direction; in terms of eliminating the doubt that the plaintiff is not the child himself, the DNA test type has not been examined and the doubt has not gone one step further to reach scientific accuracy, that is, it continues to exist as a doubt, the “learning” phenomenon of the beginning of the period has not occurred in the relevant article regulating the reduction period in terms of the rejection of the lineage case; it is understood that the court rejects the case due to the fact that the case has passed the reduction period of the rights is not correct.

(4721 P. K. m. 285, 286, 289) (6100 Pp. K. Late. m. 3) (1086 Pp. K. m. 428, 440) (ANY. MAH. 25.06.2009 t. 2008/30 E . 2009/96 K.)

Case: At the end of the trial between the parties and in the case described above, the Court decided to dismiss the case, and upon the appeal of the verdict by the plaintiff, the file was examined by the Department and Decisively considered.

Decision: In the petition of the case, it was requested to Decry the robbery between the defendant … and the joint child …, claiming that the plaintiff … is not a child; the court decided to dismiss the case, betting that the one-year reduction period stipulated for the rejection of the robbery has passed.

The case is related to the rejection of the robbery filed by the father against the child and mother, which is regulated in Articles 286 and more of the Turkish Civil Code numbered 4721.

In a broad sense, the lineage refers to the blood Decency of a person with his upper lineage; in a narrow sense, the lineage refers only to the biological connection of a person with his parents. A person (child) with the help of biological (genetic) is derived as the bond between the people paternity natural (biological relationship), with the realization of the rule of law sought by some conditions, as a result of connecting to a legal parent of a child, if that is the legal relationship between parent and child is established legal paternity (legal relationship) is called. According to this, Decoupage is defined as the natural and/or legal bond between a person and his parents.

4721) according to the Turkish civil law, paternity is the legal birth between the child and mother; child and his father with the mother between legal paternity marriage, recognition, to adopt a sentence or in a paternity case are established. To be born in a marriage between the father and the child, the presumption of paternity (TMK Dec. 285), the disappearance of the relationship of lineage, which is legally established on its basis, can only be in question with the rejection of lineage. As a result of the success of the Decriminalization case and the disappearance of the relationship between the child and his father, the child enters the status of a child who does not have a lineage from the father’s point of view. The Constitutional Court dated 25.06.2009, 2008/30 E. and 2009/96 K. as stated in the numbered decision, the right of a person to reject a child whose genetic-biological origin does not belong to him is one of his most fundamental rights.

286 of the Turkish Civil Code No. 4721. in the article, the husband can refute the presumption of paternity by refuting the case of refusal of the robbery that he will open against the child and the mother; 289. in substance, the case and the birth of the denial of the husband’s paternity that he was not the father or the mother is pregnant with another man while in a sexual relationship should be open within a year starting from the date of knowledge that exists, and if the cause of the delay, the reasons to justify that makes the one year period shall begin after the removal of threats.

In the case of refusal of the robbery, it should be emphasized whether the doubt is sufficient in terms of learning at the point when the “learning”, which is decisive in the question of whether the case was opened within the period of reduction of rights, and when the “learning”, which is the basis of the case, took place. In the established Supreme Court practice, paternity reports obtained outside the trial are especially taken into account in terms of the commencement of the litigation period, which is a period of reduction of rights, starting from the date of learning, that is, it is accepted that the reduction of rights will begin as soon as the learning takes place with an out-of-court paternity test. Therefore, the suspicion that a child is not his own will not be considered sufficient in terms of learning.

In a concrete case, the plaintiff of the defendant’s father … mother of 06.06.2003 on call with Ilknur, they got married and they got divorced on 11.05.2012,…to work in 05.07.2005 was born on taken before the decision to divorce a short while ago, during a discussion of the defendant it was someone else you said he wasn’t the father of her child, divorce from the plaintiff when the case is opened and replicate it to determine whether it’s to the detection of his lineage, but not in this direction are evaluated in an earlier review is done when; 289, which regulates the justiciary period in terms of the denial of the claimant’s ancestry case, in which no DNA test type examination was conducted in terms of eliminating the doubt that the child is not himself, and the doubt did not go one step further to reach scientific accuracy, that is, it continues to exist as a doubt.it is understood that the phenomenon of “learning” in the nature of the beginning of the period in the article does not occur; the court accepted that the case was opened within the time limit, entered into the merits of the case, collected the evidence of the parties in line with the claim, made the necessary DNA examination in terms of detecting the cold, and made a decision according to the result, while the rejection of the case from the time of the justiciary was not considered correct.

Conclusion: With the acceptance of the appeal objections of the plaintiff’s attorney, the verdict is subject to the Provisional 3 of the CCP No. 6100 for the reasons described above. article 428 of the HUMK No. 1086. in accordance with Article 440 / I of the HUMK, the parties may request correction of the decision within 15 days from the notification of the Court of Cassation Chamber decision, and in case of request, the refund of the advance fee to the appellant was unanimously decided on 11.01.2018.

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