Personality can end in two ways. These are death and absence.

1- DEATH

Detection of Death: According to TMK article 28/1, personality ends with death. While the rights that are closely tied to the person disappear, other rights pass to his heirs by inheritance. With the dissolution of the personality, new rights cannot be acquired because the entitlement has also ended. In determining the subject of death, there are two different types of death as biological and brain death.

Proof of Death: According to MK29/1, the person claiming that a person is alive or dead is obliged to prove it. Personal status logs are available for these when doing so. If the inaccuracy or absence of information in this register is claimed, it can be proved with all kinds of evidence.

Presumptions: There are also presumptions used to prove death. They are presumptions of death and death together.

-Presumption of Death: Although there is not the slightest doubt that the person is dead, it can be used when the body is not found. For example, if a passenger plane explodes, there is a presumption of death. According to Article 31 of the TMK, a person who considers his death certain according to his life experiences disappears and cannot be found, he is considered dead. With the demise of the death record, the consequences of that death come.

• Presumption of Death Together: The important thing in this presumption is not that the corpse cannot be found, but that the exact time of death of the deceased is not known. There are more than one person whose death cannot be determined. Those who die with this presumption are deemed to have died together. Here, for example, while the first deceased in the spouses is the heir to the other, if there are no common children on the presumption of death, the second group passes to their heirs.

Body Condition: The bodies of the deceased do not have any rights, but their relatives have the right to personal rights over the body of the deceased. Damages done to the corpse are deemed to have been done to their personality. Relatives can also file lawsuits.

2- OBJECTION: In some cases, the situation of people does not count death as a presumption, but leaves doubts about whether they are dead or alive. Here, people must have disappeared in great danger of death or have not been heard from for a long time.

An example of disappearing in danger of death would be a soldier lost in battle.

If there is no news for a long time, there should be doubt whether the person is alive or not. Therefore, not being able to hear from someone who goes to another country to work and does not have the habit of speaking is not included in this. If this person is in regular communication and suddenly cut off the relationship, this lawsuit can be filed. If the person disappeared with the risk of death, a lawsuit can be filed after 1 year, and after 5 years due to not receiving any news for a long time. Spouses, heirs or those who testify in their favor can file this lawsuit.

The person whose disappearance is decided is not dead or alive. The person’s property passes to his heirs. Likewise, those who claim the opposite of absence are obliged to prove it.

DEFINITION

The definition of a settlement is as follows in article 19/1 of the Turkish Civil Code: “A settlement is a place where a person resides with the intention of staying permanently”

PRINCIPLES THAT DOMINATE THE SETTLEMENT

1) The Uniqueness of the Settlement

TMK is in Article 19/2. In our law, a person cannot have more than one place of residence. This rule applies to both natural and legal persons. However, it is not valid in commercial and industrial institutions. However, the principle of uniqueness of place does not mean that a person cannot be associated with more than one place. The person may have houses where they stay in different places in summer and winter, in such a case, the judge will appreciate where the settlement is.

If one of the spouses makes a different place of residence, the house they share with TMK 186 is considered as their residence.

2) Necessity of Residence

This principle indicates that everyone must have a place of residence. For those who do not have a place of residence, provisions are given accordingly in MK 20. According to paragraph 2, the place of residence of those who do not have a place of residence in Turkey is considered their place of residence.

3) Continuity of the Settlement

It means that everyone has a place of residence from birth to death. Of course, a person can change his place of residence, but there is a place of residence from birth to death, and its continuity tells this.

Types of Settlement

1) Independent Settlement: It is the name given to the settlement established by those outside the Turkish Civil Code. It is a place of residence established by the individual independently. There are two conditions; permanent residence intention and settling intention.

2) Legal Place of Residence: Persons specified in Article 21 of the TMK are subject to a legal, that is, non-independent settlement. “The place of residence of the child under custody, his mother and father; If the parents do not have a common place of residence, it is the place of residence of the mother or father to whom the child is left. In other cases, the child’s place of residence is considered his place of residence.

The place of residence of the persons under guardianship is the place where the guardianship authority to which they are attached is located.

The place of residence of the children in custody is the parent’s joint residence or, if they do not have a joint residence, the residence of the parent from whom the custody was released.

FURTUM AND RAPINA

FURTUM

Although we usually translate it as theft, it actually has a broader meaning. It also covers breach of security and crimes against property. It is one of the oldest torts of Rome. There are three types

Furtum Rei is when a thief enters the house directly and steals an item. Furtum Usus is the theft of using. If the person who is only in charge of holding what he is holding uses it, it is Furtum Usus. Furtum Possessionis, on the other hand, is the person who stole what he pawned, the theft of possession.

RAPINA

Extortion or rapina; It is the taking or usurpation of a person’s property by using force and violence. If the case is opened within 1 year after the usurpation, 4 times the price of the item, if it is opened after 1 year, the price of the item can be demanded. Those who were convicted for extortion were declared infamis, dishonest.

DAMAGES TO PROPERTY AND INIURIA

Damnum Iniuria Datum: To unjustly damage the property of others. Injuring his slave, breaking his door, etc. In order for this crime to be counted, it must first be a tortious act. If there is self-defense, this is not a tort.

Iniuria: It means the direct rape of the person and the violation of the personality. Over time, this concept began to be used for all kinds of material and moral rape. Therefore, conviction would result in infamia, that is, dishonor.

THE PRETORS KNOW: DOLUS AND METUS

Dolus: It means cheating. It includes all corruption, deceptive words and actions. Later, the meaning of this crime was expanded and all kinds of acts against goodwill were included in the scope of the dolmas crime. Before that, the ius civile did not take precautions against cheating and there was no penalty, then the praetors took measures against it.

Metus: Revenge. It is to make a person take a legal action that he would not normally do, by threatening or intimidating. There is a spiritual compulsion.

Fraus Creditorum: It is the name given to the fraudulent smuggling of goods by the debtor to the detriment of the creditor.

Unlawfulness

There is no culpability without violation of the law. illegality without conformity to typicality, illegality
Without it, there is no fault. Typicalism is a prerequisite for illegality, and illegality is a prerequisite for culpability.
When the act conforms to the legal definition, it is also considered to be unlawful. Because legal
The definition defines unlawful behavior by type. In other words, an act is against the law.
because it is typified. Establishment of illegality, function of conformity with legal recognition
Since it is legal, there is no need for positive elements that establish other illegality besides conformity with legal recognition.
there is none. The conformity of the behavior to the legal definition indicates illegality. In other words, legal
realization of the definition constitutes the presumption of illegality. perpetrator, legal
When the definition is realized, the result is that the legal order does not approve of this behavior.
If a situation has arisen showing that the prohibited behavior is exceptionally lawful.
In the present case, the illegality of the act was rejected. In other words, if there is a reason for compliance with the law, the act is against the law.
is not. There is a presumption that the act complies with the definition of crime regulated in the legal definition, and that it is unlawful.
does not necessarily lead to the conclusion that it is against the law. Therefore, the legal recognition of the act
After determining its suitability, whether there is a reason for compliance with the law that removes the illegality.
It is necessary to check whether Reasons for legality, violation of legal definition of action
These are the events that make the perpetration of injustice not illegal. So to the law
If the reasons for compliance have been realized, it is no longer possible to talk about the unfairness of the act.

Gai (Final) Crime Theory

It is the theory developed by Welzel since the early 1930s. According to this theory, caste
it is included in the typicality along with the subjective element. Fault is accepted as a pure value judgment. of injustice
subjectification and normativeization of defect. Subjectivization of caste
also caused a change in the concept of injustice, the awareness of injustice is an independent element of the fault.
has been. In the material conditions of the reasons for compliance with the law, the mistake is not considered as intentional,
is classified as faulty. The distinction between legal error and actual error is abandoned and the material
The error in the elements is the element error, and the error in the illegality of the act is unfair.
called error. In the fallacy of unfairness, a distinction is made between inevitable and avoidable error.
The existence of the defect is rejected in the error, and the defect is accepted even if it is reduced in the avoidable error.
In the material conditions of the reasons for compliance with the law, the error is characterized as the error of injustice.
This theory also establishes causality in terms of condition theory. Fault is the judgment given about the perpetrator.
The final crime theory examines crime as typicality, illegality, and culpability. The objective of typicality
action to its elements, causality, and to its subjective elements, caste and other subjective elements.
are included.

Negative Criminal Element Theory

According to this theory, crime has two elements. These are typicality and imperfection. This theory is the element of typicality.
presents a different approach. The element of typicality of the crime, positive and negative typicality in itself.
made up of elements. Elements of positive typicality are expressed in the legal definition of the crime.
represents the elements. Negative typicality elements, on the other hand, are applied to the law during the evaluation of typicality.
states that the reasons for eligibility do not exist in the concrete case. in the legal definition for typicality
In addition to the existence of the elements, there should be no reasons for compliance with the law. This theory is legal
includes the element of contradiction in the element of typicality. The effect of such a determination is self-explanatory.
aspect reveals. According to this theory, caste contains only the objective elements of typicality.
It is not necessary to cover it, but also to include that there is no reason for compliance with the law in the concrete case.
required. Therefore, the error regarding the existence of the reason for compliance with the law, the error regarding the elements of the crime.
are analyzed within the scope of

T.R.
Supreme Court

8. Criminal Chamber

Base Number :2017/12704
Decision No: 2017/14128
K. Date:12.12.2017

COURT: Criminal Court of First Instance
CRIME: Slander
JURISDICTION: Acquittal

It has been discussed and considered:
Despite the fact that an investigation was initiated against the victims after he claimed that he saw the victims cutting trees although he did not see them cutting trees at the time of the incident, the fact that the trees were cut at the crime scene upon the notification of the accused would not remove the slander intent, and he was accused of committing the crime of opposing the Forest Law to the victims, even though he knew that he had not committed the crime. Decision to be acquitted with a written justification instead of his conviction for the crime charged in terms of Eren and his elements,
It is against the law, since the appeals of the Public Prosecutor were deemed appropriate in this respect, the verdict was stated in the 8/1 of the Law No. 5320 for this reason. It was unanimously decided on 12.12.2017 that it should be VOID pursuant to article 321 of the CMUK numbered 1412, which should be implemented pursuant to the article.

Temporarily or in line with the Public Recommendation of the Workplace
Closing
Without the need for any official statement or T.C. Ministry of Health or
In addition, by following the recommendation of public institutions and organizations, the employer’s workplace temporarily
As a rule, the employer’s obligation to pay the wages of the workers continues. Because this
In this case, the employer closed the workplace on his own initiative without any compelling reason.
and the obligation to pay the wages of the worker does not cease. However, in this case, the employer
does not have to pay fringe benefits such as premiums, travel and meals related to being present/actually working.
we are of the opinion.
In case of temporary closure of the workplace, the obligation to pay wages arising from the law continues.
In this case, the employee’s consent is not required.
ii. The Employer’s Mandatory Closure of the Workplace Pursuant to a Public Decision
Pursuant to Article 40 of the Labor Law No. 4857, for more than 1 (one) week,
the occurrence of compelling reasons that cause the workers to stop working or prevent the workers from working
In the event of an employment contract, the employment contract is suspended for this 1 (one) week period and the worker receives half a salary during this period.
is paid. 3
The compelling reason for the closure of workplaces due to the mandatory decision of public institutions and organizations
It is evaluated separately for each concrete event. Supreme Court established
compelling reasons in their jurisprudence, “… interruption of transportation due to natural events such as hand, snow, earthquake,
Situations such as quarantine due to an epidemic are compelling reasons.
defines it. In this context, as we have seen examples in the world due to the Corona Virus
In case of imposition of regional quarantines or curfews, the worker’s employment
40th of the Labor Law No. 4857, for a period of one week due to the
According to the article, the employer is obliged to pay half wages to the worker. Because this article is
As stated in the Supreme Court decision, for cases such as quarantine practices due to epidemics
edited.

“Those who cannot work or are not employed due to the compelling reasons indicated in subparagraphs (III) of Articles 24 and 25.
The worker is paid half wage for each day up to one week during this waiting period.”
“The reasons that prevent the worker from working must occur in the worker’s environment. The reasons arising from the workplace and preventing work are not included in this article. For example, closure of the workplace is not considered a compelling reason. However, situations such as the interruption of transportation due to natural events such as floods, snow, earthquakes, and the quarantine application due to epidemics are compelling reasons. (Court of Appeals 9.05.2016 T. 09.05.2016, E. 2016/7175, K. 2016/11446/ Supreme Court 22. HDT T. 04.02.2014, M. 2013/2499, K 2014/1389/ Supreme Court 9. HDT. 29.05. 2014, M. 2012/10932, K. 2014/17580)

According to the 3rd clause of the 25th article of the Labor Law No. 4857, the worker is not allowed to work for more than 1 (one) week.
In the event of a compelling reason, force majeure preventing him from working, the employer 1 (one)
can terminate the employment contract for just cause after the weekly period has elapsed. coercive in this provision
Why does it occur not in the workplace, but around the worker and as a result, worker defect?
cannot fulfill its debt of employment due to temporary impossibility of performance without
is taken. A situation that occurs at the workplace and requires the cessation of work for more than 1 (one) week.
Based on compelling reason, the employer cannot terminate the employment contract with just cause. In this case, for good reason
The right of termination belongs to the employee.
It should be noted that in the rightful termination made for compelling reasons, the employee’s severance pay and all the related termination benefits.
must pay their debts. No notice pay is required.
However, the theater, which was decided to be closed privately as of the date of preparation of this article,
Except for some workplaces such as cinemas, performance centers, bars, gyms, Turkish baths, indoor playgrounds.
Since there is no compelling reason to prevent working throughout the country, including
that our evaluations under the title will not find application for all workplaces yet.
We would like to point out.

A. Rule Governing the Issuance of Specially Stamped Passports to Lawyers

Subject Matter Rule

The rule in question stipulates that lawyers who are investigated or prosecuted for certain crimes should not be given special stamped passports, limited to the duration of the investigation or prosecution.

Reason for Cancellation Request

In summary, in the petition; It has been argued that the rule in question limits the freedom of travel by stipulating certain conditions for lawyers in terms of holding a special stamped passport, and that the rule is unconstitutional.

Court’s Evaluation

As stipulated in the rule, it is clear that not giving a specially stamped passport to the person concerned on the grounds that he is being investigated or prosecuted for certain crimes does not result in the person being described as a criminal and penal sanction.

The fact that the legislator stipulates certain conditions while making arrangements regarding the persons who can benefit from special stamped passports is only a limitation for obtaining such passports. Accordingly, the rule in question, which can be summarized as stipulating certain conditions in order to reach the opportunities provided by being able to go abroad as a special stamped passport holder, does not have an aspect that restricts the freedom to go abroad, which is guaranteed in Article 23 of the Constitution.

Since it can be said that lawyers who are under investigation or prosecution for certain crimes and those who are not, are in a similar situation to make comparisons, it can be said that a difference is created between them by the rule.

The fact that lawyers within the scope of the rule subject to the case cannot obtain special stamped passports is not of a permanent nature and is limited to the duration of the investigation or prosecution carried out for the aforementioned crimes.

A suitable balance has been established between the aim pursued by foreseeing the aforementioned difference in the conditions regarding the acquisition of the opportunity to obtain a special stamped passport and the means envisaged by the rule. In this context, according to the purpose of foreseeing the said difference brought by the rule, an excessive burden was not imposed on the lawyers within the scope of the rule. In this respect, there is nothing contrary to the principle of equality in the rule.

For the reasons explained, the Constitutional Court decided that the rule was not unconstitutional and that the request for annulment was rejected.

B. The Rule Restricting the Freedom to Travel Abroad

Subject Matter Rules

Those whose passports have been revoked due to their membership or affiliation with or affiliation with structures, formations or groups, or terrorist organizations that are determined to pose a threat to national security in the rules subject to the case, and those whose passports have been taken administrative action against being issued a passport, shall be made by law enforcement units, provided that they meet the conditions specified in the rules. According to the results of the research, it has been regulated that a passport can be issued by the Ministry of Interior.

Reason for Cancellation Request

In summary, in the petition; It has been argued that the rules are contrary to the Constitution, stating that the Constitution gives authority to the administration in an area where the Constitution explicitly stipulates a judge’s decision, eliminates the opportunities for individuals to work abroad, and creates a disproportionate intervention in their private lives.

Court’s Evaluation

Article 23 of the Constitution states that a citizen’s freedom to go abroad can only be limited by the decision of a judge, depending on the reason for a criminal investigation or prosecution.

Since certain conditions are stipulated by the rules in question for those who are allowed to obtain a passport, the rules impose a limitation on the freedom to go abroad. Granting this opportunity to some people by the rules results in the fact that passports cannot be obtained for those who are not given the opportunity, therefore, the rules in question impose a limitation on the aforementioned freedom for these people.

A regulation regarding the freedom to go abroad, which is one of the dimensions of freedom of movement and which is under special guarantee, must not be contrary to the limitations stated in Article 13 of the Constitution and the guarantee envisaged here.

It is clear that the rules subject to the case restrict the issuance of passports to individuals regardless of the reason for the criminal investigation and prosecution and the decision of the judge.

Considering that the freedom to go abroad can only be limited due to a criminal investigation or prosecution and is subject to the guarantee of a judge’s decision pursuant to Article 23 of the Constitution, it is seen that some of the reasons for restriction stipulated by the rules in the case do not comply with the limitations stated in the aforementioned article of the Constitution and are against the guarantee of the judge’s decision attached to these reasons. . In this respect, the rules limit the freedom to go abroad in violation of the Constitution.

For the reasons explained, the Constitutional Court decided that the rules were unconstitutional and that they were annulled, and that the decision would enter into force one year after its publication in the Official Gazette.