SUMMARY: The insurance period of those subject to disability, old age and death insurances is started from the age of 18. However, insurance premiums paid for periods before this date are included in the number of premium payment days.

10th Civil Chamber of the Court of Cassation

E.2018/2953 K.2019/9506 T.04.12.2019

Article 60/G of the abrogated Law No. 506, which is applied by reference to the Provisional Article 7 of the Law No. 5510, stipulates that “In the application of this article, the insurance period of those who are subject to disability, old age and death insurance before the age of 18 is considered to have started on the date they turn 18. However, the disability, old-age and death insurance premiums paid for the periods before this date shall be included in the calculation of the number of premium payment days”. It must be accepted that the words “those who are subject to disability, old age and death insurances” in the article, with an interpretation in favor of the insured, also cover those who should be subject. On the other hand, within the scope of Provisional Article 54 of the same law, it is stated that this article, i.e. the age limit of 18, shall not apply to those who were registered for invalidity, old-age and death insurances before 01.04.1981.

Accordingly, accepting the insurance starting date as 01.05.2008, when the claimant, who was born on 01.05.1990, turned 18 years old, and the service periods before this date should only be included in the number of premium payment days, while making a decision as written, is contrary to the procedure and the law and is a reason for reversal.

Although the Court decided to determine the service of the claimant by excluding the periods between 24/05/2010 - 25/08/2011, the court's acceptance that the claimant continued to work until one day before the date of military service and that the service contract started again one day after the discharge is inappropriate. While the court should determine the reasonable period of time regarding the process of going to the military service and the start date of the employment contract after the return of the military service and the process of adaptation to civilian life after the return of the military service and make a decision according to the result, the decision in the written manner is contrary to the procedure and the law and is a reason for reversal.

However, since the elimination of this contradiction does not require a retrial, the decision should not be reversed, and in accordance with Article 370/2 of the Code of Civil Procedure No. 6100, the said decision should be approved with correction.

CONCLUSION

By annulling the decision of the 34th Civil Chamber of the Istanbul Regional Court of Appeals pursuant to Article 373/1 of the CCP, the paragraph of judgment of the Court of First Instance shall be amended as follows: “It has been determined that the plaintiff worked at the workplace of the defendant ... between 11.02.2004 - 01.05.2008 and that the plaintiff's insurance commencement date was 01.05.2008 (the date he turned 18), and that the period of work before this date, when he turned 18, was determined as 01.05.2008. 2008 and that the starting date of the plaintiff's insurance was 01.05.2008 (the date when the plaintiff turned 18 years old) and that the working period before this date, when the plaintiff turned 18 years old, should be included only in the number of premium payment days in accordance with the provision 60/G of the Law No. 506”; and the phrase ”23. 05.2010” in the sentence paragraph and replace it with the phrase ‘15.05.2010’, delete the phrase ‘26.08.2011’ and replace it with the phrase ‘01.09.2011’ and the judgment shall be approved as amended, the appeal fee shall be returned to the defendants ... upon request, the file shall be sent to the Court of First Instance that made the decision, a copy of the decision shall be sent to the Regional Court of Appeals, it was unanimously decided on 04/12/2019.