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The provisions of this clause are also applicable with regard to the
Bankruptcy Fees receivable over the value of the case.
c) Fees with regard to down payments, bookkeeping, and inheritance
affairs,
Fees with regard to down payments, bookkeeping, and inheritance
affairs, written under section (D) of tariff no.(1) are payable no later than
15 days as from the date of completion of the respective proceeding.
Rationale of the applications before the Constitutional Court
In the applications to the Constitutional Court from various first degree
courts, it has been set forth that, even though the claimant party wins the
respective lawsuit, its receipt of the respective writ and the commencement
of execution proceedings are contingent upon the fulfillment of a duty by
the counterparty charged via writ. Since the rule in question stipulates that
unless the decree and writ fee is paid to the addressee, the writ is not to
be delivered the non-delivery of the writ to the prevailing party hinders
the claimant party’s freedom to claim its right of access to the court. It is
therefore claimed that the objected rule contradicts Articles 2, 5, 10, 35,
36, and 90 of the Constitution.
Review by the Constitutional Court
As put forth above, the objected rule is included under Article 28 of
the Law of Fees No.492, titled “Time of Payment of Proportional Fees”. In
the first sentence of Article 28.1(a), it is specified that one-quarter of the
decree and writ fees is payable in advance and the remainder is payable no
later than two months from the date of the respective decree, and the second
sentence states that unless the decree and writ fee is paid, the respective
writ is not notified to the addressee.
In Article 37 of the Law, the collection of the fees specified under the
Law which are not timely paid, is also stipulated. In accordance with this
rule, the decree and writ fees unpaid by their payees within their due term
of payment are to be collected in accordance with the respective provisions
of the Law on Collection Procedures of Public Receivables No.6183 by the
local tax department.
A fee is a monetary amount being received from those utilizing
administrative services for those services and is, therefore, a special and