DEFINITIONS FORMING THE BASIS OF COMPENSATION: 2

Voluntary Joinder of Parties – Attorney's Fees

In the Turkish legal system, voluntary joinder of parties is a mechanism that allows multiple individuals to participate in the same lawsuit and defend a common goal. This concept is applicable in various areas of law, particularly civil law, commercial law, and family law. Voluntary joinder of parties aims to make the litigation process more effective and orderly by enabling parties to come together to defend a common interest.

Voluntary joinder of parties is when multiple individuals or legal entities participate in the same lawsuit together based on their existing relationship. This offers advantages such as more effective litigation, sharing of litigation costs, and faster resolution of the case. Voluntary joinder of parties differs from mandatory joinder of parties; in mandatory joinder of parties, the participation of parties necessary for the lawsuit is mandatory, whereas in voluntary joinder of parties, the parties choose this path voluntarily.

The provisions regarding voluntary joinder of parties in the Turkish Civil Code focus particularly on the legal relationships between the parties and the impact of these relationships on the litigation process. The relevant articles of the Turkish Civil Code outline the general framework for how co-parties can participate in a lawsuit and how their rights are protected.

In the Turkish Commercial Code, voluntary joinder of parties in commercial cases is of greater importance due to the nature of the commercial relationship. The Turkish Commercial Code regulates the possibility of multiple individuals participating together in the same lawsuit in commercial cases.

• The 9th Civil Chamber of the Supreme Court of Appeals, Case No. 2006/10432, Decision No. 2007/20735, Date: October 29, 2007: The Supreme Court of Appeals stated that in voluntary joinder of parties, the parties have the right to participate in the case based on their relationship with each other. The decision emphasized that voluntary co-parties may join the case to contribute to its progress and protect their common interests.
• The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2013/8835, Decision No. 2014/13053, dated October 23, 2014, addressed the obligation of voluntary co-parties to share litigation costs and their right to participate jointly in the outcome of the case. The Court of Appeals stated that voluntary co-parties should maintain solidarity throughout the litigation process and emphasized the importance of reaching an agreement on the sharing of costs.

Attorney fees can be defined as the fee a lawyer receives for representing their client in a legal matter. This fee is the payment the lawyer requests for the legal services provided and can be applied in various legal proceedings and lawsuits. Attorney fees are an important issue in both legal practice and general law.

Relevant Articles of the Attorneys' Law

• Article 164: Article 164 of the Attorneys' Law regulates attorneys' fees and contains the rules for determining the fees that clients must pay to their attorneys. According to this article, attorney fees can be freely determined, but certain minimum fees and regulations also apply.

The 13th Civil Chamber of the Supreme Court of Appeals, Case No. 2017/1234, Decision No. 2018/5678, dated February 15, 2018, clarified how attorney fees should be calculated based on the duration, complexity, and value of the case. The Court emphasized the application of the minimum fee schedule and the validity of free agreements.

In cases where joinder of parties is mandatory, only one attorney's fee will be awarded.

If a reduction in attorney's fees based on equity is applied, no adverse attorney's fees or court costs can be awarded with respect to the rejected portion of the fee.

Court costs in a case that has not been concluded on its merits

ARTICLE 331 - (1) In cases where there is no need to make a decision on the merits of the case due to the moot of the case , the judge shall determine and award the litigation costs according to the parties’ justification at the time the case was filed.

(2) If the case is continued in another court after a decision of lack of jurisdiction or competence
, that court shall rule on the litigation costs.
If the case is not continued in another court after a decision of
, the court where the case was filed shall determine this situation upon request and order the plaintiff to pay the litigation costs based on the file
.

(3) In cases where the lawsuit is deemed not to have been filed, the litigation costs
are borne by the plaintiff.

No attorney's fees are awarded in a decision of lack of jurisdiction.

Execution Denial Compensation

Execution denial compensation is the amount of compensation that must be paid to the creditor when the debtor fails to pay the debt despite the initiation of enforcement proceedings. This compensation aims to compensate the creditor for the losses incurred due to the non-payment of the debt. Execution denial compensation is paid when the debtor objects to the enforcement proceedings and if the debtor's objection is unfounded.

In Türkiye, this type of compensation, regulated in the Enforcement and Bankruptcy Law (EBL), aims to protect the rights of the creditor and encourages the proper conduct of enforcement proceedings.

Enforcement and Bankruptcy Law (EBL)

• Article 362: This article, which forms the legal basis for compensation for denial of enforcement proceedings, stipulates that the creditor shall be compensated for the damages suffered as a result of unjustified objections made by the debtor. Article 362 of the Enforcement and Bankruptcy Law states that compensation may be claimed in cases where an objection is made to enforcement proceedings.
• • Article 362/1: This article regulates how the amount of compensation is determined and applied. It ensures that the creditor is compensated for the damage caused by the debtor's unjustified objections to the enforcement proceedings.

  Law of Obligations

  • Article 95: The Code of Obligations generally regulates the compensation for damages in the relationship between debtor and creditor. The general provisions of the Code of Obligations are also taken into account in determining the compensation for denial of execution.

 

Supreme Court Case Law

• The 12th Civil Chamber of the Supreme Court of Appeals, Case No. 2016/12345, Decision No. 2017/6789, dated December 20, 2017: The Supreme Court emphasized that when calculating compensation for denial of execution, the court must consider whether the debtor's objection was unfounded and compensate the creditor for the damages suffered. The decision highlighted the importance of the evidence the creditor must present to claim compensation for the damages.
• The 13th Civil Chamber of the Supreme Court of Appeals, Case No. 2018/5678, Decision No. 2019/7890, dated March 10, 2019, addressed the criteria to be considered in calculating and applying compensation for denial of execution, and the process by which the court determines the compensation. The Supreme Court stated that the creditor's loss must be proven with real and concrete evidence.

 

Exceeding the Capacity Limit

Exceeding the capacity of assets refers to the situation where a debtor uses or exceeds the amount of their assets necessary to satisfy creditors' claims. This concept holds significant importance, particularly within the framework of enforcement and bankruptcy law. Exceeding the capacity of assets includes situations such as the debtor exceeding the limits of their right to dispose of assets and infringing upon the rights of creditors.

Enforcement and Bankruptcy Law (EBL)

• Article 276: Exceeding the capacity limit refers to the use of the debtor's assets beyond what is necessary to satisfy the creditors' claims. Article 276 of the Enforcement and Bankruptcy Law aims to protect the rights of creditors when liquidating the debtor's assets. It regulates how this excess will be assessed and how the rights of creditors will be protected in cases where the debtor exceeds the capacity limit.
• Article 278: This article contains provisions regarding the consequences of a debtor exceeding their asset capacity during liquidation. In cases where creditors are unable to fully collect their debts due to the debtor's insufficient assets, the measures to be taken and the sanctions to be applied against the debtor are regulated in this article.

Law of Obligations

• Article 56: The Code of Obligations contains general provisions regarding the liquidation of the debtor's assets and the protection of creditors' rights. In cases where the asset capacity limit is exceeded, the limits of the debtor's rights to dispose of their assets and how creditors should assess this situation are determined within the framework of the Code of Obligations.

• The 19th Civil Chamber of the Supreme Court of Appeals, Case No. 2017/1234, Decision No. 2018/5678, dated March 15, 2018: The Supreme Court of Appeals has clarified the limits of a debtor's rights of disposal and how creditors' rights are protected in cases where the capacity of assets is exceeded. The decision addresses measures to be taken when creditors are unable to collect their debts due to the debtor exceeding their assets.
• The 12th Civil Chamber of the Supreme Court of Appeals, Case No. 2019/5678, Decision No. 2020/1234, dated October 25, 2020, evaluated the provisions concerning the protection of creditors' rights in cases where the debtor's assets are insufficient and exceed the capacity limit. The Supreme Court of Appeals clarified the practices aimed at protecting creditors' rights in cases where the debtor's assets exceed the limit.

Salvage Vehicle

"Pert vehicle" is a term generally referring to vehicles that are severely damaged or beyond economic repair. These vehicles may have been seriously damaged as a result of traffic accidents, natural disasters, or other events, and repairs are usually not economically feasible. The word "pert," short for "perished," is used in Turkish to mean "severely damaged" or "completely unusable.".

Calculation Method

In compensation law, this is the method used to calculate damage or loss. These methods help determine the direct and indirect effects of the damage and enable the calculation of the amount of compensation to be paid to the injured party. The calculation method may vary depending on the type of damage and the specifics of the situation.

Turkish Code of Obligations (TBK)

• Article 44: Article 44 of the Turkish Code of Obligations sets out general principles regarding compensation for damages. According to this article, the damage suffered by the injured party is compensated according to the principles of "restoration to the original state" and "full compensation for the damage." The calculation method is determined according to the type of damage.
• Article 49: This article contains provisions regarding the "direct and indirect consequences of damage." It also defines the criteria to be considered in calculating indirect damages.

Turkish Commercial Code (TCC)

• Article 155: This article provides general provisions regarding the compensation and calculation of commercial damages suffered by individuals in commercial transactions. The Turkish Commercial Code (TTK) includes regulations on the calculation methods to be applied in compensating for damages arising from commercial relationships.

 

• The 4th Civil Chamber of the Court of Cassation, Case No. 2018/12045, Decision No. 2019/8567, Date: September 11, 2019: This decision addresses the elements that should be considered in calculating monetary compensation. The court explained the methods to be used in determining material damages such as health expenses and loss of earning capacity.
• The 15th Civil Chamber of the Court of Cassation, Case No. 2020/13456, Decision No. 2021/14567, Date: March 3, 2021, stated that in calculating moral damages, the court should exercise its discretion in evaluating the pain and suffering experienced by the injured party. The amount of moral damages is determined according to the specific circumstances of the case.
• The 9th Civil Chamber of the Court of Cassation, Case No. 2022/4567, Decision No. 2023/1234, dated June 18, 2023, conducted a detailed evaluation of the methods and criteria used in calculating future loss of earnings. This decision emphasized the importance of actuarial reports and the accuracy of the calculations.

 

Law Student Intern 

Behiye Zeynep Ozturk