Enforcement Of Non-Final Judgment Awarding Moral Damages For Death And Bodily Injury
T.C. COURT OF APPEALS
12th Civil Chamber Case No. :2018/2790
Decision No. :2018/5318
Date of Decision : 28.05.2018
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. After hearing the report prepared by the Review Judge … for the case file
and reviewing all the documents in the file
, the matter was discussed and considered:
The debtor’s attorney argued that an enforcement proceeding had been initiated against his client based on a judgment, that the judgment in question had not yet become final,
and that judgments related to claims for moral damages, being matters of personal law, could not be the subject of enforcement
proceedings before becoming final, and requested that the enforcement proceeding be canceled. The court ruled that judgments related to family
and personal law cannot be subject to enforcement proceedings before they become final, the request was accepted,
and the enforcement proceedings were canceled.
Pursuant to Article 443/1 of the Code of Civil Procedure, which must be applied in accordance with the transitional provision of Article 3 of the Code of Civil Procedure No. 6100,
Article 443/1 of the Code of Civil Procedure (HUMK), 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 law (HUMK Article 443/4) cannot be enforced before they become final. The provisions of 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… Enforcement and Bankruptcy Law Handbook, pages 923-924).
In the present case, the enforcement proceeding is based on the decision of the 2nd Civil Court of First Instance, Case No. 2014/548,
2014/1333 Decision No. and dated 17/12/2014, pertains to moral damages awarded pursuant to Article 56 of the Turkish
Civil Code No. 6098 due to death and bodily injury, and since it does not fall under the categories mentioned above,
it does not require finalization to be subject to enforcement.
Therefore, while the court should have ruled to dismiss the complaint, the decision to accept the complaint with a written justification
and to cancel the enforcement is incorrect.
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 rendered unanimously on May 28, 2018.