Whether Judgments Can Be Subject To Enforcement Without A Writ Of Execution Through General Seizure
SUMMARY: It has been determined that the task of examining the request for the consolidation of case law
regarding whether judgments may be subject to enforcement proceedings without a writ of execution
belongs to the Supreme Court’s General Assembly for the Consolidation of Case Law.
It has been decided to refer the case file to the High Court of First Instance for submission to the aforementioned Assembly.
I. INTRODUCTION
A. APPLICATIONS FOR THE UNIFICATION OF JUDICIAL PRECEDENTS
Attorney Abdullah Duran and Attorney Eda Tanrıverdi, in their petition dated October 8, 2013, requested the unification of judicial precedents between the General Assembly and the Chambers regarding whether a monetary claim based on a judgment
could be subject to enforcement proceedings without a judgment.
and the Chambers.
B. THE DECISION OF THE FIRST PRESIDENCY OF THE COURT OF APPEALS AND THE SUBJECT OF THE UNIFICATION OF JUDICIAL PRECEDENTS
The First Presidency of the Court of Appeals, in its decision dated November 6, 2014, No. 183, ruled on the subject of whether judgments can be the subject of enforcement proceedings without a judgment.
The Supreme Court First Presidency Council’s decision dated November 6, 2014, and numbered 183, concluded that there was a discrepancy between the General Assembly of the Supreme Court and the Chambers regarding whether judgments could be subject to enforcement proceedings without a judgment, and that different practices were being followed. It was decided that this discrepancy should be resolved through the unification of precedents, and that the rapporteur member would be determined at a later date.
The rapporteur member was determined as follows:
and that different practices continue to be applied. It was decided to resolve this discrepancy through the unification of precedents
and to appoint Ahmet Hamdi Güler, a member of the 19th Civil Chamber, as the rapporteur member, with the meeting date to be determined later.
C. DECISIONS SUBJECT TO THE REQUEST FOR RESOLUTION OF THE DISCREPANCY
C. DECISIONS SUBJECT TO THE REQUEST TO RESOLVE THE DISAGREEMENT
Decisions submitted by the applicant in their petition: The General Assembly of the Supreme Court’s decision dated December 15, 2004, No. 2004/13-
722 E.-2004/707 K. dated 15.12.2004 and 2005/12-57 E.-2005/72 K. dated 16.02.2005; Fourth Civil Chamber
June 8, 1990, No. 1989/10029 E.-1990/4992 K.; Twelfth Civil Chamber, October 25, 2005, No.
2005/16562-20786 E.K., June 10, 2013, and 2013/10325-21720 E.K., May 27, 2013, and 2013/9819-
19458 E.K.. May 23, 2000, and 2000/7926-8433 E.K. Thirteenth Civil Chamber October 22, 1990, and 1990/1571-6573E. K. and
March 28, 2003, and 2002/12176 E.-2003/3621 K. numbered decisions.
However, research has revealed that the Eighth Civil Chamber has also issued decisions in this regard.
SUMMARY OF THE OPINIONS STATED IN THE DECISIONS SUBJECT TO THE REQUEST FOR RESOLUTION OF THE DISAGREEMENT
1. Summary of the Opinions of the General Assembly of the Court of Appeals and the Chambers Regarding the Decision That Enforcement Proceedings Without a Judgment May Be Conducted Through General Attachment for Monetary Claims Subject to a Judgment
The Presidency of the General Assembly of the Court of Appeals, the Fourth Chamber of the Court of Appeals, the Ninth Chamber of the Court of Appeals, and the Thirteenth Chamber of the Court of Appeals stated in their opinion letters that, in summary, it is sufficient for the creditor to have any document in their possession for the collection of monetary claims through compulsory execution, and there is no legal regulation preventing a creditor who has a judgment or a document equivalent to a judgment from conducting enforcement proceedings without a judgment; it is legally impossible to accept that the creditor chose to pursue the less advantageous “non-judgment-based enforcement”
proceeding“ instead of the more advantageous ”judgment-based proceeding” solely for the purpose of obtaining enforcement denial compensation, and that the debtor, who has undeniably objected to the debt unjustly, is also in a position to know that they may be liable for denial compensation upon request. It is emphasized that enforcement proceedings without a judgment may be conducted for monetary claims subject to a judgment.
2. Summaries of the Opinions of the Chambers That Ruled That Enforcement Without a Judgment Cannot Be Conducted Through General Attachment for Monetary Claims Subject to a Judgment
In their opinion letters, the Eighth Civil Chamber and the Twelfth Civil Chamber summarized that, based on the combined interpretation of Articles 24, 25, 26, 30, and 32 of the Enforcement and Bankruptcy Law, if a judgment is submitted with the enforcement request, the enforcement officer is obligated to issue an “enforcement order,” and issuing a payment order is not in accordance with the law; If the opposite is accepted, the debtor’s right to benefit from the possibility of postponement of enforcement (İİK.m.36) will be taken away, and if the only remaining option to prevent the continuation of the enforcement is to use the “objection” route, liability for compensation (İİK.m.67, 68) would arise, and this would also be contrary to the principle of good faith established in Article 29/1 of the Code of Civil Procedure.
It was stated that enforcement proceedings without a judgment could not be conducted for monetary claims subject to a judgment.
II. PRELIMINARY ISSUE AND PRELIMINARY ISSUE REVIEW
A. PRELIMINARY ISSUE
During the discussions at the Supreme Court’s Judicial Unity General Assembly, before proceeding to the merits of the case:
– Prior to 2012, the Twelfth Civil Chamber had issued decisions allowing creditors with judgments regarding the collection of monetary claims to pursue enforcement proceedings without a judgment, but after this date, its opinion changed.
However, there are no contrary decisions issued by the General Assembly of the Supreme Court or the Thirteenth Civil Chamber after this date.
– The decision of the General Assembly of the Court of Appeals (dated December 15, 2004, numbered 2004/13-722 F..-2004/707 K.), which is alleged to be contradictory, does not concern the main issue of “whether judgments can be subject to enforcement proceedings without a judgment through general attachment
or not,” but merely a passing reference made during the explanation of the reasoning, and that the aforementioned decision cannot be considered relevant to this matter,
– The decision of the General Assembly of the Court of Appeals, which is alleged to be contradictory, is not a court ruling (HMK.ııı.301/2) but relates to an arbitral award, and the General Assembly of the Court of Appeals has accepted that this decision is not an “award”
; the core of the dispute lies in the conditions for bad faith compensation, and that the decision of the General Assembly of the Supreme Court, which is alleged to be inconsistent, does not actually contain any inconsistency with the view adopted in the newly formed Chamber decisions in terms of historical priority and subject matter, and that the duty of unifying case law lies with the Supreme Court Case Law Unification Chamber, not the Supreme Court Case Law Unification General Assembly, in light of the provision in Article 16, Paragraph 5 of the Supreme Court Law. , as explicitly provided for in Article 15(2)(b) of the Law.
During the discussions on whether to accept or reject the preliminary issue, it was noted that Article 45, Paragraph 2 of the Supreme Court Law, titled “The Authority and Binding Nature of Requesting the Unification of Case Law,” states:
“In cases where other authorities or individuals submit written requests with reasons, the First Presidency Council decides whether it is necessary to proceed with the unification of case law.
This decision is final, and its finality binds the Council designated by the First Presidency Council as responsible for the review task and entrusted with it. This decision is final,” it is stated that this finality binds the Committee designated by the First Presidency Council as responsible for the review and entrusted with the task; Although it has been argued that the decision made by the First Presidency Council during its review, which assessed the inconsistency and recommended that the matter be resolved by the Grand General Assembly, cannot be debated, the task of consolidating case law is related to public order, as stated in Article 1 of the Code of Civil Procedure, and the Grand General Assembly may decide on the matter, therefore, the preliminary issue
has been examined.
B. EXAMINATION OF THE PRELIMINARY ISSUE AND REASONS
In the evaluation of the preliminary issue, it was necessary to clarify which Council would conduct the examination regarding the consolidation of precedents.
Article 16, paragraph 5, of the Supreme Court Law, titled “Duties of the Supreme Court General Assembly”:
“The Supreme Court General Assembly shall review and harmonize decisions rendered by the Civil General Assembly in similar cases that are inconsistent with each other, decisions rendered by the Criminal General Assembly in similar cases that are inconsistent with each other, or decisions rendered by the Civil General Assembly and
the Criminal General Assembly; the General Assembly of the Court of Cassation and a civil chamber:
the General Assembly of the Court of Cassation and a criminal chamber, or the Criminal General Assembly and a criminal chamber; the Criminal General Assembly and a civil chamber, or a civil chamber and a criminal chamber; to resolve conflicts of precedent and unify precedents.”
The second paragraph of Article 15 of the same Law, titled “Duties of the General Assemblies of Civil and Criminal Law,” assigns the task of resolving such inconsistencies to the General Assembly of Civil Law.
The main subject of the decision of the General Assembly of Civil Law dated December 15, 2004, numbered 2004/13-722 E.-2004/707 K., is whether the decision of the arbitration committee is considered a judgment and, based on this, whether compensation for bad faith can be awarded in the decision issued upon objection to the enforcement proceeding initiated without a judgment. in this regard, the statement in the decision that “Even if the aforementioned document is deemed to be a final judgment, as explained in the reversal judgment, there is no legal provision preventing a creditor who holds a document deemed to be a final judgment from initiating enforcement proceedings without a final judgment” was included in the decision solely for explanatory purposes and has no relevance to the resolution of the dispute at issue in that decision; in this context,
the phrase, which does not address the dispute, does not reflect the final opinion of the General Assembly of the Court of Cassation.
In this case, there is no possibility of accepting that there is a contradiction between the decision of the General Assembly of the Court of Cassation and the decisions of the Chambers of the Court of Cassation. When referring to the second paragraph of Article 15 of the Court of Cassation Law,
it is clear that there is only a discrepancy in jurisprudence between the chambers of the court, and the task of unifying the jurisprudence lies with the Chambers of the Court of Cassation, not the General Assembly
Judicial Precedent Harmonization General Assembly of the Court of Cassation.
During the discussion of the preliminary question, it was noted that the decision of the General Assembly of the Court of Cassation clearly sets forth a legal opinion that is not open to interpretation, and that in this form, the aforementioned decision, when evaluated together with the decisions listed above, it falls within the scope of inconsistency, and the task of unifying precedents belongs to the Supreme Court’s Grand General Assembly for Unifying Precedents in accordance with Article 16, Paragraph 5 of the Supreme Court Law. However, for the reasons stated above, this view
has not been adopted.
Based on the aforementioned reasons, it was decided to refer the case file for the unification of precedents to the Supreme Court’s General Assembly for the Unification of Precedents, which is responsible for reviewing the request, through the High First Presidency.
III. CONCLUSION
It has been determined that the task of examining the request for the consolidation of case law on the issue of “whether judgments may be subject to enforcement proceedings without a writ of execution through general attachment”
belongs to the Supreme Court Case Law Consolidation General Assembly, and it has been decided by a majority vote at the session held on March 17, 2017, to refer the case file to the aforementioned Assembly through the High First Presidency
at the session held on March 17, 2017, by a majority vote.
DISSENTING OPINION
The subject of the request for the consolidation of case law before the Supreme Court’s Case Law Consolidation Grand General Assembly is whether judgments can be subject to enforcement proceedings without a judgment through general attachment.
The Supreme Court Law has assigned the task of unifying precedents to two separate committees and has limited the distinction between their tasks, in concrete cases, to whether or not a decision has been issued by the General Assembly of the Supreme Court
regarding decisions deemed to be contradictory.
Indeed, according to the fifth paragraph of Article 16 of the Supreme Court Law, titled “Duties of the Supreme Court Grand General Assembly,” “…the duty of resolving conflicts of precedent between the General Assembly of the Court of Appeals and a court of law…” and consolidating precedents belongs to the Grand General Assembly.
If there is no decision issued by the General Assembly of the Supreme Court among the decisions alleged to be conflicting, then, in accordance with the second paragraph of Article 15 of the separate Law titled “Duties of the General Assemblies of the Supreme Court and the Court of Appeals,” this duty is assigned to the General Assembly of the Supreme Court.
The preliminary issue brought before the General Assembly of the Supreme Court is the decision of the General Assembly of the Supreme Court dated December 15, 2004, and numbered 2004/13-722
The preliminary issue brought before the Grand General Assembly concerns whether a legal conclusion has been reached on the matter for which the unification of precedents is sought in the decision of the General Assembly of Judges and Prosecutors dated December 15, 2004, and numbered 2004/13-722 E.-2004/707K. , whether a legal conclusion has been reached on the matter in question, and whether the request for consolidation should be examined by the Grand General Assembly or the General Assembly of Civil Law, depending on the conclusion reached.
While the reasoning behind court decisions is not, as a rule, binding, it constitutes an integral and important part of the decision in that it reflects the court’s legal opinion and forms the basis for the conclusion reached.
A decision without reasoning cannot be considered a final decision; this is not merely a matter of ordinary legal understanding but an absolute rule established by the Constitution (Article 105). A decision without a rationale cannot be accepted as a final decision; this is not a matter of ordinary legal understanding but an absolute rule established by the Constitution (Art. 141/111).
In legal proceedings, the reasoning is the undisputed guarantee of the right to a fair hearing (HMK Art. 27/2-c) and the principle of openness (HMK Art. 28/3). On the other hand, the reasoning is such an integral part of the decision that the interpretation of the decision (HMK Art. 294/ 4, 321/2), its drafting (HMK Art. 297/1-e, 298/2-3, 353/1-ğ), and the commencement of the appeal period.
The importance of the reasoning is also evident in the fact that even decisions that are correct in terms of their outcome can be “amended” and corrected by higher courts during appellate and cassation reviews
(HMK Art. 353/1-b-3, 370/4). Indeed, the necessity of addressing the legal dissatisfaction experienced by the parties due to reaching a conclusion based on an incomplete or erroneous reasoning has been adopted by the legislature,
and thus, it has been established as a legal and normative acceptance that the reasoning is an indispensable condition (condictio sine qua non) in terms of demonstrating the legal basis, if not in terms of enforcement.
The mere absence of reasoning is sufficient grounds for overturning a decision.
After these explanations regarding the importance of reasoning, it is also useful to consider the “ratio decidendi.” As is well known, in the Anglo-Saxon legal system, the fundamental basis of a decision and the principles central to the resolution of a dispute are referred to as the ratio decidendi. These principles express the fundamental legal understanding that the court will take into account in every similar case. Parts that are outside the ratio decidendi and have no effect on the decision (obiter dictum) have no binding force. It can be accepted that this qualification should also be taken into account in Turkish law.
Returning to the specific case, the General Assembly of the Supreme Court clearly stated in its decision that “Even if the aforementioned document is a judgment, as explained in the reversal judgment, there is no legal provision preventing a creditor who has a document that is a judgment from pursuing enforcement without a judgment.”
Based on the above explanations and the evaluation of the explicit language used in the aforementioned decision of the General Assembly of the Supreme Court, the conclusion reached is that the legal determination emphasized in the reasoning
should now be considered the fundamental principle (ratio decidendi) of that decision. Considering that the decisions of the General Assembly of the Supreme Court are binding for the case to which they pertain, have the nature of precedent for similar cases, and serve as a guiding principle, it is not acceptable to think that the view emphasized in the decision does not reflect the court’s legal assessment and will (or was “casually” included there), and to classify it as “obiter dictum” is not acceptable.
In light of this clarity in the reasoning, the existence of the General Assembly of the Supreme Court’s legal opinion that judgments can be subject to enforcement proceedings without a judgment through general attachment, and that this has been clearly stated, cannot be denied. At this point, the General Assembly of the Supreme Court.
When it comes to the specific case, the General Assembly of the Supreme Court clearly stated in its decision that “Even if the aforementioned document is a judgment, as explained in the reversal judgment, there is no legal provision that prevents a creditor who has a document that is a judgment from initiating enforcement proceedings without a judgment.”
Based on the above explanations and the evaluation of the explicit language used in the aforementioned decision of the General Assembly of the Supreme Court, the conclusion reached is that the legal determination mentioned in the reasoning and particularly emphasized
should now be considered the fundamental principle (ratio decidendi) of that decision. Considering that the decisions of the General Assembly of the Supreme Court are binding in the case to which they pertain, and that they also serve as precedents and provide guidance for similar cases, it is not acceptable to assume that the view emphasized in the decision does not reflect the court’s legal assessment and intent (or was “casually” included there) and to classify it as “obiter dictum.”
Given this clarity in the reasoning, the existence of the General Assembly of the Court of Cassation’s legal opinion that judgments may be subject to enforcement proceedings without a judgment through general attachment, and the fact that this is explicitly stated, cannot be denied. At this point, we cannot agree with the majority’s decision, as we believe that the aforementioned decision of the General Assembly of the Court of Cassation should be considered among the conflicting decisions regarding the request to unify case law, and that the task of review falls to the Grand General Assembly within the framework of Article 16, Paragraph 5 of the Court of Cassation Law.