Supreme Court 11. law office
Part Number: 2017/3251
Decision Number: 2019/805
“text of jurisprudence”
COURT : … DISTRICT COURT OF JUSTICE …. law office
ON BEHALF OF THE TURKISH NATION
In the dec between the parties … 7. Issued by the Commercial Court of First Instance dated 28/11/2016 and dated 2015/320 E. – 2016/777 K. upon appeal of the numbered decision by the defendant’s deputy, the District Court of Justice on the acceptance of the request for appeal …. 20/04/2017 date and issued by the Department of law 2017/143-examination by the plaintiff’s attorney filed the petition and appeal of Decision No. 2017/175 yargitayca that is given within the period of being understood, with the audit report to file a claim held by a judge rested, and again within the file petitions, pleadings, and trial proceedings and all documents are read and analyzed, after the nature of the business is discussed, considered:
5 of the service agreement between the client and the respondent; the deci-dent of the plaintiff. according to the article, throughout the duration of the study along with the defendant of the defendant’s workplace environment that we transfer to third parties, the customer, up to and including termination of employment within the next 6 months in the same issue(faxserver) directly or indirectly engage in any other business of the client and that it cannot close to this position out of contact with the customer’s environment and it could be that it was this article in violation of the defendant’s criminal 50,000 USD that you would repay requirement was determined that defendant’s service agreement on the dissolution of 20.06.2002, according to the complaint made about the persons, including the defendant, 7 Gen Information and Communication Services were decommissioned. Ltd. Şti.during the search at the workplace belonging to the defendant’s computers, within 6 months from the end of the employment contract, his client had correspondence aimed at establishing a commercial connection with his customers in a virtual environment, claiming that this was contrary to the prohibition of competition, and demanded the collection of the $ 50,000 criminal requirement with interest on the effective sales rate of the CBRT on the actual payment day and sued.
The defendant’s attorney; duties and derdestlik objection by the client of the rights of non-payment due to the dissolution of the employment contract was invalid because it had been written only of the penalties against the employer, upon the termination of the contract, penal clause become null and void, his client does not have a requirement that would require criminal activities, some other job that are relevant to the topic of the plaintiff’s activity wasn’t working, exorbitant and penal clauses, arguing that dismissal should tenkis wanted to.
According to the scope of the claim, defense, expert report and the entire file by the court of first instance; between the parties dec.05…..5 of the service agreement, according to which the service agreement of 2000 was drawn up. article 7 in which there is a ban on competition for a period of 6 months after the expiration of the agreement and it is agreed to pay a punitive condition of 50,000.00 USD in case of contrary behavior, in case of termination of the agreement. Out of the case with the defendant from the file of the Criminal Court No. 2008/316 ….the decision to convict due to the fact that the database of the plaintiff’s computer was installed on his own computers
issued and finalized on 11.06.2009, … 7. Business 2002/1603 numbered from the file of the court of the service contract be deemed to have been unjustly terminated by the plaintiff and the defendant’s workers ‘ claims collection where decision is made, the contract worker’s unfair this situation doesn’t remove the obligation to keep secrets even feshedils, Article 5 of the convention/d for a period of 6 months after termination of the contract in the article applied to the secrecy of noncompetition obligation, the obligation to keep secrets accepted also covered the case on the grounds that it violates the defendant’s acceptance of, It has been decided that USD 50,000 will be collected with interest, which will be processed in accordance with Article 4 /a of Law No. 3095 from the date of the case.
An appeal was filed by the defendant’s deputy against the decision.
… By the District Court of Justice, according to the entire scope of the file; the defendant’s deputy’s application for appeal, … 7. The basis of the Employment Tribunal …/11/2009 dated 2007/20 – Decision 2009/821 numbered file in the file open receivables related to the workmanship of the defendant in the case of employment, the worker is entitled to severance pay severance pay is rejected and not be deemed to have terminated so that where, through the control with the finalization of the decision of the Supreme Court, regarding the Prohibition of the competition of the service agreement signed by the defendant in the absence of a geographical area of workers will be economically article in nature undoing limitation, the right to freedom of contract and the freedom to study this situation is in violation of the legal regulations on, the only defendant is not enough to get out of the customer list on the computer using this list and providing benefits to the detriment of the plaintiff by yourself or by a third party that gave rise to the hormonal plaintiffs with respect to the same legal reason out of the case, a lawsuit against the third party takipsiz also left, for these reasons, unfair competition, contract is the provision superstitious invalid on the basis of the cancellation to the terms of the contract on the grounds that it would not be required upon adoption of the decision of the court of First Instance 6100) HMK of 353/1-b-… in accordance removed and the case is dismissed.
The decision of the District Court of Justice was appealed by the acting plaintiff.
1- Provisional Law No. 6100 …. article…. paragraph “427 to 454 of the Law No. 1086 of /09/2004 and the amendment to the Law No. 5236 on decisions made before the date of commencement of office of the district court courts, until they are finalized. the implementation of the provisions of the article shall be continued. Files on these decisions cannot be sent to the district court of appeals.” he has his say. Although the decision made by the court of first instance on the adoption of the case on the grounds outlined above on 28.11.2016 was made after the date of operation of the district court courts, the decision made by the court of first instance in the case file ….the decision of 07.2014 was first adopted by the 9th Supreme Court. The Law Department’s decision No. 2014/34794 of 2014/2014 dated 20.11.2014 has passed the review and it is clear that the provision is subject to the review of the appeal law path in accordance with the said article of the Law. In this context, the fact that the appeal law has been shown in the judgment part of the decision by the court of first instance will not change the result. Accordingly, the District Court … to which the file was sent …. By law, the court of First Instance for judgment of the Appellate Law Review the request with the adoption of prompt belong to the petition that contains the file to be sent to our new apartment should be decided while on the basics entered 6100) HMK 353/1-b-section of the case by the decision of the court of First Instance was not correct by removing the decision of the denial, the defendant’s attorney of the court of First Instance against the decision of the Regional Court of Appeals justice with the adoption …. The Legal Department’s decision dated 20.04.2017, based on 2017/143 and decision No. 2017/175 was overturned and abolished, and the defendant’s attorney’s request for an appeal against the decision of the court of first instance had to be examined.
…- The case is related to the request to collect the criminal requirement arising from the ban on competition. As of the date of expiration of the contract concluded between the parties in a concrete dispute, the Code of Obligations No. 818 is in force, and in the case of a dispute, it is in accordance with Articles 348 and 349 of the DEC. application of the provisions of the article
is required. Held between the parties on Dec.05…..5 of the service contract dated 2000. in the regulation on the prohibition of competition in the article, no restrictions have been made in terms of geographical area. In Articles 48 and further of the Constitution of the Republic of Turkey, organized under the title of Freedom of Work and Contract, everyone has the constitutional guarantee that they have the freedom to work and contract in any field they want. Article 349 of the Civil Code No. 818. (TBK M. No. 6098. in accordance with Article 445), it has been arranged that the provision on prohibition of competition will not apply if the prohibition of competition does not include restrictions that are in accordance with equity in terms of place, time and subject matter in such a way as to endanger the economic future of the employee. In a concrete case, the absence of a geographical area limitation in the article on the prohibition of competition of the service contract subject to litigation between the parties is such that it decisively endangers the economic future of the employee, so according to the freedom of work and the legal regulations described above, the provision of the contract on the prohibition of competition should be considered superstitious. Although the court should have decided on this issue, its acceptance on written grounds was not correct, and the decision had to be overturned for this reason.
CONCLUSION: For the reasons described in paragraph (1) above … the District Court of Justice …. The decision of the Law Department dated 20.04.2017, based on 2017/143 and decision No. 2017/175 was OVERTURNED, the appeal appeals of the defendant’s attorney for the decision of the court of first instance for the reasons described in paragraph (…) were accepted and the decision was OVERTURNED for the defendant’s benefit, the advance appeal fee paid was returned to the appellant at the request of the appellant, on 04/02/2019 it was decided unanimously.
