Enforcement Of A Judgment For Copyright Damages Before It Becomes Final
T.C.
COURT OF APPEALS 12th Civil Chamber Case No. :2018/3154
Decision No. :2018/7106
Date of Decision : 02.07.2018
COURT OF APPEALS DECISION
COURT: Enforcement Court
Upon the creditor’s request for an appeal review of the court decision dated and numbered above within the prescribed time limit,
the relevant file was sent from the local court to the chamber, and after hearing the report prepared by the Review Judge … for the case file
and reviewing all the documents in the file
were read and examined, the matter was discussed and considered:
The debtor’s attorney, in his application to the enforcement court, argued that, in addition to other objections, an enforcement proceeding had been initiated against his client based on a judgment,
that the judgment in question had not become final, and that since it pertained to the individual’s rights,
it could not be subject to enforcement before becoming final, and requested that the enforcement be canceled.
The court accepted the request and decided to cancel the proceedings on the grounds that judgments related to family and personal rights cannot be enforced before they become final,
and that the decision issued by the Intellectual and Industrial Property Rights Court regarding compensation for unauthorized use of the plaintiff-legal entity’s personality rights
cannot be enforced before it becomes final.
It has been observed that the request was accepted and the proceedings were canceled.
Pursuant to Article 443/1 of the Code of Civil Procedure (HUMK), which must be applied in accordance with the transitional provision of Article 3 of the Code of Civil Procedure No. 6100,
the appeal does not suspend the enforcement of the decision. In other words, as a general rule, the fact that the decision has not become final does not prevent its enforcement. The exceptions to this rule are also regulated by law.
Judgments related to family and personal rights (Article 443/4 of the Code of Civil Procedure) cannot be enforced before they become final. The provisions set forth in the aforementioned article are also regulated by law.
Judgments relating to family and personal law (Article 443/4 of the Code of Civil Procedure) cannot be enforced before they become final. The provisions mentioned
in this article do not cover all provisions relating to the subjects covered in the “Personal Law” and “Family Law” books of the Civil Code,
but only judgments that directly affect the legal status of the person or family structure
(e.g.,
correction of name, surname, age, termination of custody, paternity suit, correction of lineage, divorce, and related
provisions). Similarly, judgments regarding child custody and the establishment of personal relations with the child
cannot be enforced until they become final (Baki Kuru-Enforcement and Bankruptcy Law Handbook, pages 923-924).
In the present case, the enforcement proceeding is based on the decision of the Istanbul 3rd Intellectual and Industrial Property Rights Court
dated February 3, 2015, is related to the claim for copyright compensation sought under Article 68 of Law No. 5846
due to the unauthorized use of images constituting works.
The decision, while relating to the individual’s rights, does not result in any changes to the legal status of the parties
and only affects their property, so it does not need to be finalized to be enforceable.
Therefore, the court should have dismissed the complaint and decided on the other grounds stated in the complaint based on the outcome of the review,
Therefore, the court should have dismissed this complaint and decided on the outcome based on an examination of the other reasons stated in the complaint, but it was inappropriate to decide to cancel the enforcement based on the written grounds.
CONCLUSION: The creditor’s appeal is accepted, and the court’s decision is reversed in accordance with the reasons stated above
pursuant to Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Code of Civil Procedure, the advance fee shall be refunded upon request,
and the right to appeal the decision within 10 days from the date of service of the judgment is reserved.
The decision was made unanimously on July 2, 2018.