THE PRELIMINARY INJUCTION AND PRECAUTIONARY ATTACHMENT WHICH ARE PRONOUNCED IN THE PRESENCE OF PARTIES 06 November 2020
Is it possible to apply for an appeal within the framework of the new HMK against the preliminary injunction and precautionary attachment decisions which are pronounced in the presence? What has changed with the new HMK?
As explained in the article of law, preliminary injunction and precautionary attachment decisions are temporary protection measures given on the subject of dispute in cases where it is worried that obtaining the right will be significantly difficult or completely impossible due to a change that may occur in the current situation, or that there will be an inconvenience or serious damage due to delay.
Preliminary injunction and precautionary attachment decisions, which are highly preferred in legal practice and are considered as temporary protection measures, have been regulated differently in the former and new law in terms of objection procedures and the possibility of requesting an appeal. In the Article 107 of the abolished Code of Civil Procedure numbered 1086 (“HUMK”), it is stipulated that an appeal can be made to the court that made the decision against the preliminary injunction and precautionary attachment orders given in the absence of the party. However, in the aforementioned abolished law, there were not a regulation regarding the appeal against the precautionary injunctions. Therefore it can be said that it is not possible to appeal against these decisions.
It should be noted that in the Article 107 of the abolished HUMK, the preliminary injunction and precautionary attachment decisions have not been included in the decisions which can be appealed. For this reason, according to the abolished HUMK, there is no possibility of appeal against the preliminary injunction and precautionary attachment decisions. However, an objection procedure has been regulated for the decisions given in the absence of the party. Therefore, it is not possible to apply for any appeal procedure in our former law in relation to the preliminary injunctions both which are pronounced in the presence of the party and given in absence. It is only possible to apply an objection against injunction decisions that were given in the absence. There is no regulation that can be used to object the preliminary injunctions and precautionary attachment decisions given in the face of the party.
Therefore, there was a serious confusion before the new law entered into effect, as there was no unity of case law on this issue. The nature of preliminary injunction and precautionary attachment orders is explained in detail in Article 397 of the Code of Civil Procedure numbered 6100, which is our new procedural law. In the Article 394 of the law, it is stated that an objection can be made against the preliminary injunction decisions taken without hearing the other party and an appeal can be made against the decision on the objection. Even if it is thought that the objection or appeal procedure against the preliminary injunction and precautionary attachment decisions given in the face is not possible when the relevant law article is read, but in Article 341 of the new Code of Civil Procedure, which was not in the former law, it is provided that it is possible to appeal the preliminary injunction and precautionary attachment orders given in the other party's presence.
Therefore, it can be seen that our new law clearly stated that, contrary to the old law, a legal remedy of appeal may be applied against the preliminary injunction decisions given in the face, with the phrase added to Article 341 of the HMK. Therefore, the problem of appealing the preliminary injunction and precautionary attachment decisions given in the presence, which caused confusion at the time of the abolished HUMK, has been completely resolved with the new regulation, Article 341.
In conclusion, in the abolished law numbered 1086, no possibility of appealing the preliminary injunction and precautionary attachment decisions given in the face is regulated. In the relevant law, it is only stipulated that an objection can be filed against preliminary injunction decisions given in absence of the party. This legal gap in the law has caused a lot of confusion. Our new law numbered 6100 has put an end to this confusion by clearly declaring that it is possible to apply for appeal against preliminary injunction and precautionary attachment decisions, which are pronounced in the face in Article 341 of the HMK. Therefore, there is no difference of opinion on this matter anymore, and an appeal can be made against the preliminary injunction or injunction decisions pronounced in the face.
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