Can The Receivables Written In The Same Judgment Be Subject To Separate Execution Proceedings?
The 8th Civil Chamber and the 12th Civil Chamber of the Court of Cassation take completely different views.
In the decision of the 8th Civil Chamber of the Court of Cassation numbered 2012/6206/8203
“…With the decision dated 13.11.2014 and numbered 2014/1009 given at the end of the complaint lawsuit filed by the complainant against the named Lawyer registered under the number Esas: 2014/745 of Ankara 12th Execution Law Court, it is stated that there is no regulation in the laws that separate proceedings can be initiated for the rights that are ruled by a judgment, in this context, the dispute should be resolved by taking into account Articles 36 of the Constitution, 1, 2, 4 and 33 of the Turkish Civil Code, 77 of the Code of Obligations and 29 of the Code of Civil Procedure. In this context, the dispute should be resolved by taking into account the articles 36 of the Constitution, 1, 2, 4 and 33 of the Turkish Civil Code, 77 of the Code of Obligations and 29 of the Code of Civil Procedure, in accordance with the rules of objective good faith, it is an abuse of right to initiate separate proceedings for the rights in a judgment by taking advantage of the loophole in the law by the named lawyer and to request an extra attorney’s fee in a way that will cause unjust enrichment, although the judgment is a whole, the creditor does not comply with the rules of honesty by initiating two separate proceedings without a legal and valid reason…” and the 12th Civil Chamber of Law states that separate proceedings cannot be made with the reasoning that this is possible.
TBB Disciplinary Board’s decision dated 26.07.2013 and numbered E. 2013/139, K. 2013/565
“…The disciplinary proceeding is not whether there is a violation of law in the complained lawyer’s collection of the attorney fee and judicial expenses subject to the court judgment by making two separate execution proceedings, but whether the action taken is in accordance with the professional rules.
Even if the action is formally in compliance with the law, the collection of two separate execution attorney fees by making two separate proceedings for two receivables of the same nature written in the judgment is incompatible with the spirit and accepted principles of the professional rules. Even if the lawyer complies with the judicial decisions, he/she should be more careful and attentive in matters that are contrary to the moral values that the society attaches importance to and that directly concern the reputation of lawyers in the public, and cannot contribute to “creating a negative image that lawyers think of nothing but money” with their actions.
Because lawyering is, first and foremost, a public service and the lawyer must work in a manner that ensures that “the public’s trust in the legal profession” is not shaken (Article 34 of the Law on Lawyers and Article 3 of the TBB Professional Rules). The lawyer is also bound by the measure of “compliance with the law” (Av. Faruk Erem, Commentary on Professional Rules, p. 46).
The complainant lawyer’s action is in breach of the obligation to fulfill the assigned duty in a manner befitting the sanctity of this duty with diligence, integrity and honor and to act in accordance with the respect and trust required by the title of lawyer and to comply with the Professional Rules determined by the Union of Bar Associations of Turkey and the obligation to comply with the Professional Rules determined by the Union of Bar Associations of Turkey as described in Article 34 of the Attorneyship Law and Article 3 of the Professional Rules of the Union of Bar Associations of Turkey. Article 3 of the Code of Professional Conduct of the Union of Turkish Bar Associations, the principle of conducting professional work in a manner that ensures public confidence and trust in the profession, and the principle of conducting one’s work with complete loyalty, and the principle of avoiding all kinds of attitudes and behaviors that would damage the reputation of the profession, and thus constitutes a disciplinary offense.”
TBB Disciplinary Board’s decision dated 03.01.2015 and numbered E. 2014/766, K. 22015/16
“…One of the problems subject to disciplinary proceedings is whether the receivable written in a judgment can be subject to more than one proceeding. The jurisprudence of the 8th Civil Chamber and the 12th Civil Chamber of the Court of Cassation on whether the receivable written in a judgment can be put into separate proceedings is different, and according to the decisions of the 8th Civil Chamber, separate proceedings cannot be made according to the decisions of the 8th Civil Chamber, and according to the decisions of the 12th Civil Chamber, separate proceedings can be made,
In the decision of the Supreme Court of Appeals General Assembly of Civil Chambers dated 24.03.2010 and numbered 2010/12 138 Main, 2010/169 Decision, it is possible to make a single proceeding in terms of the original receivable written in the judgment and the judicial expenses and attorney’s fee, as well as separate proceedings. Since there is no legal provision preventing separate proceedings in terms of the main receivable and related accessory receivables ruled in the judgment, it is inappropriate for the court to decide to accept the complaint instead of deciding to reject it”.
In that case, it is necessary to look at the intended result of the proceedings and whether this right has been abused. In terms of the amount of the proceedings, it is seen that the Complainant lawyer did not pursue for unfair gain. The legal assessment of the Bar Disciplinary Board in this direction is correct…”, the Court of Cassation reversed its jurisprudence based on the decision of the Supreme Court of Appeals General Assembly of Civil Chambers and decided that it is possible by considering whether the right is abused or not.
With the “Approval” dated 27.02.2017 and numbered 92358809-152.03-59343- 2696 of the Ministry of Justice, General Directorate of Legal Affairs of the Ministry of Justice, our Board’s decision dated 04.01. 2017 dated 04.01.2017 and numbered 2016/761 Main, 2017/56 Decision, “Although it has been decided by the Disciplinary Board of the Union of Turkish Bar Associations to reject the objection and to approve the aforementioned decision on the grounds that there is no concrete evidence that the lawyer acted with the aim of harming the complainant, taking into account the decision of the Supreme Court of Appeals General Assembly of Civil Law that there is no legal provision preventing separate enforcement proceedings in terms of the main receivable and secondary receivables ruled in the judgment,
….As a matter of fact, the decision of the 8th Civil Chamber of the Court of Cassation dated 09.11.2012 and numbered Esas:2012/7921, Decision: 2012/10135 dated 09.11.2012 and dated 26.07.2013 and numbered Esas:2013/139, Decision:2013/565 of the Disciplinary Board of the Union of Turkish Bar Associations, it was accepted that an action of a precedent nature is contrary to Articles 34,134 of the Attorneyship Law and Articles 3,4 of the Professional Rules and requires disciplinary punishment.”
