Status of the usufruct owner
Article 700 – In case a shareholder establishes usufruct right on his/her own share, if one of the other stakeholders requests to share within three months starting from the notification of the establishment of the usufruct right; The usufruct right in sharing through sale continues on the price to be deducted for the relevant share.
End Time of the Goods Regime
In order to file a lawsuit for the liquidation of the property regime; The existing property regime between the parties must come to an end. The end of the property regime is not the same as the end of the marriage union. Sometimes
The existing property regime between spouses ends before the marriage union ends.
Although the marriage union continues, the existing property regime
may end.
In which cases the current property regime between spouses will end
It is shown in Article 225 of TMK. Accordingly, the situations that terminate the goods regime;
a) In case of death of one of the spouses: On the date of death, both the marriage union and the property regime end as of the date of death.
b) The current property regime between the spouses and the property regime agreement
if they choose one of the other regimes set forth in the law, except:
On the date this new regime was elected, the old property regime among them also came to an end.
it melts. For example, if the spouses got married on 01.01.2004 and the property regime
Let’s say they don’t have a contract. According to the law, they will be subject to the regime of participation in compulsorily acquired property from the date of their marriage. Spouses shown in the law on 01.01.2012
choose one of the other property regimes, for example property separation regime
in case of; Although the marriage union continues, the date of marriage is 01.
The regime of joining the acquired goods, which started on 01.2004, began on 01.01.2012 when the property separation regime was selected with the property regime agreement.
will have ended.
c) In case of divorce and annulment of marriage:
The existing property regime between the spouses at the date of the annulment action is also
will end. If the marriage union is; It will end on the date of finalization of the decision regarding the annulment of divorce or marriage, not on the date when the divorce or annulment of marriage lawsuits are filed.
d) Decision of the judge to switch to “separation of property”
In case of: When the spouses want together, the existing property regime can be applied between them.
they can change or remove them by adhering to legal limits. For example before
Although they have chosen the property separation regime, they may choose one of the property partnership or other regimes specified in the Law later on. However, in the law
In some exceptional cases (TMK m. 206 et al.), one of the spouses
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current property regime with the decision of the family court judge
It can be converted into a “separation of property regime”. In this case, the marriage union
Although the existing property regime between the parties continues (for example, participation in acquired properties, property partnership regime or shared property)
separation regime) on the date when the case for transition to the extraordinary property regime was filed
will end.
Types of Property Regime Litigation
Cases regarding the property regime, which are still being heard in family courts and which are under appeal at the Court of Cassation; “transition case to extraordinary property regime” (TMK art. 206 vd), “value increase share receivables case”
(TMK m. 227), “litigation for participation in residual value” (TMK m. 231-236),
and the “contribution receivable lawsuit”. One of these cases, “the case of transition to the extraordinary property regime is not a debt case, but the existing one between the spouses.
changing the property regime, changing the existing property regime with the decision of the judge
It is a case that aims to transform the “separation” regime. Three other cases
if; These are lawsuits aimed at the collection of a receivable based on personal rights.
Information about these cases that will be useful in practice is briefly summarized.
Commodity Regime Start Date
In lawsuits regarding the liquidation of the property regime, such as the contribution fee claim, the value increase share lawsuit, the surplus value participation claim lawsuit.
First of all, the following issues should be determined: According to which property regime rules will these cases be resolved? Rules will be applied in the case
What date does the property regime begin and end between the parties?
has it reached?
If there is a property regime selected by contract between the parties, that property
the rules regarding the goods regime, a property determined by the goods regime contract.
property to which they are obligated by law
regime rules will apply. The request was made by the previous Civil Code (743
to an asset acquired during the period in force (TMK No.
is intended for and no other goods regime has been accepted by the parties; “Separation of goods”, which was accepted as a rule regime in our previous Law
According to the regime of the new Civil Code (TMK No. 4721), if the request
It is accepted as a legal property regime if it is for a property acquired after its entry into force and no other property regime has been chosen by the parties.
litigation in accordance with the rules of the “joining in acquired property” regime
will be resolved. .
What date did the property regime subject to liquidation start between the parties? If the parties have not made a separate contract; Those who got married before the date of 01. 01. 2002, when the Civil Law No. 4721 came into force
between the spouses from the date of their marriage with the previous Marital No. 743
They will be subject to the property separation regime, which is accepted as the legal property regime in our law, and this regime will be subject to the new Civil Code No. 4321.
entered into force on 01.02.2002 and ended on the same date with a new
acquired property stipulated by our Civil Code as a legal property regime.
regime of participation in goods will begin. Spouses at a later date
also in case they choose another regime specified in the law; on the date of the current goods regime goods regime contract between them
will end and the new regime they have chosen will begin. Property regime agreement between spouses who got married after 01. 01. 2002
if not done; regime of participation in property acquired at the time of marriage
will start.
Case for Transition to the Extraordinary Property Regime
Spouses can legally sign a property regime agreement “together” whenever they wish.
the right to change the existing property regime between them within the borders
they have. However, in some cases, the existing goods regime between them
It may be necessary to change, change without the spouses acting “together”. If the spouses have chosen one of the regimes of participation in the acquired property, shared property separation, property partnership or because they did not make a property regime contract, they are subject to the regime of participation in the acquired properties in accordance with the law.
if they have been; on changing the existing goods regime between them
even if they do not have a common demand, in some cases the existing
The transformation of the property regime into the “separation of property” regime is regulated in our law as an extraordinary property regime. For example, among
In the event of the bankruptcy of one of the spouses with the “company of property” regime, the property partnership regime will automatically turn into a property separation regime with the bankruptcy decision (TMK art. 209). From spouses who accept the property partnership
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creditor, who is in enforcement proceedings against someone, in the implementation of the lien
if he suffers a loss, he will be able to ask the judge to decide on “separation of property” (TMK Article 210). If one of the spouses is constantly deprived of the power of discrimination; legal representative is TMK
According to article 206, he will be able to file a lawsuit for the separation of property. TMC 206.
If there is a justifiable reason indicated in the article or similar, by the family court at the request of one of the spouses.
It may be decided to transform the existing property regime between spouses into “property separation”. The importance of this case is as follows: In the event that this case is accepted and the decision is finalized, although the marriage union continues between the spouses, other cases for the liquidation of the property regime will be opened,
basis may be examined.
Officer in the case of transition to the extraordinary property regime (separation of property)
The court is a family court and is subject to fixed court fees and fixed attorney’s fees. The competent court is if any of the spouses
settlement court (TMK art. 207).
Residual Value Participation Claim
The legal basis of this case is the articles of the Turkish Civil Code numbered 4721 regulating the regime of participation in acquired goods (art.
218-241), especially 231-236. articles and Supreme Court decisions. The regime of participation in the goods acquired with the goods regime contract.
in accordance with the law because they have chosen or did not make a property regime contract.
(TMK m. 202) is a case for the spouses or their legal heirs, who are considered to have chosen this regime, to receive money based on personal rights that they can demand from each other when the property regime ends.
The most important feature that distinguishes this lawsuit from the lawsuit for “contribution” receivables and “value increase share” claims; one of the parties to the other
the burden of proving that he contributed to a property or property belonging to
not below. The legislator has spouses in this property regime.
They have given the right to claim mutual money based on personal rights regarding some of the goods they own (TMK Article 219). For this concrete
a contribution does not need to be proven. When the goods regime ends; As a rule, half of the “residual value” (TMK m. 231) belonging to the defendant, one of the other spouses or his heirs, of each of the spouses or their heirs.
They may request it as “receivables to participate in residual value”. Article 231 of the TMK
The acquired goods for which the residual value will be found are explained in article 219. Social security or social assistance institutions and organizations or
chests and the like, which were established for the purpose of helping the personnel,
loss of working power through payments (such as pensions)
compensation paid for; Although it is counted among the “acquired goods” in our law (TMK Article 219), all of them are acquired property.
is not, some of it is personal property, how is this separation process?
It is explained in article 228.
T.R. JUDICIARY
Basis: 2016/ 3044
Decision: 2018 / 7677
Decision Date: 06.11.2018
COURT: Assize Court
CRIME: qualified fraud
PROVISION: Conviction pursuant to articles 158/1-e-son, 43, 62, 52 and 53 of the TCK
The judgment regarding the conviction of the accused for the crime of qualified fraud was appealed by the defendant’s lawyer and the attorney who participated, and the file was examined and the necessary consideration was taken,
Despite Nazife’s death in October 1993, the defendant received a power of attorney from the notary public on 21/12/1992 in order to withdraw the salary of his mother-in-law, Nazife, who lived with him and received a pension from the participating institution. the pension continued to be deposited into the bank account due to the failure to notify, the defendant did not report this death until the date of the crime, he took a total of 75,911.57 TL of his pension, the defendant obtained unfair advantage by fraudulent actions in this way, the defense of the defendant containing a confession, the statements of the witnesses, the conquest of the grave. As it is understood from the report of the Forensic Medicine Institute and the scope of the entire file, there was no misconduct in the conviction of the accused for the crime of qualified fraud.
According to the trial held, the evidence gathered and shown at the place of decision, the opinion and discretion of the court in accordance with the results of the prosecution, and the scope of the examined file; the rejection of the other appeals of the defendant’s counsel and the participating attorney, but;
In cases listed in sub-paragraphs (e), (f) (i) and (k) of paragraph 1 of Article 158 of the TCK No. 5237, the basic day to be determined for the determination of the judicial fine is minimum, not less than twice the unfair advantage obtained from the crime, and In accordance with the 52nd article of the same law, after the increase and reductions are made over the number of days to be determined by increasing the amount, the resultant number of days is multiplied by the amount to be appreciated between 20-100 TL, regardless of whether the resulting judicial fine should be determined. penalty determination,
Since the objections of the defendant’s defense counsel and the participating attorney were deemed appropriate in this respect, the verdict was therefore VOID pursuant to Article 321 of the Criminal Code No. 1412, which is still in effect pursuant to Article 8 of the Law No. Since it is possible to rectify in accordance with the article, the terms “5,000 Days”, “7.500 Days”, “6.250 Days” and “125.000 TL” related to the judicial fine, respectively, were completely removed from the sentence clause and replaced with “7.591 Days”, “11.386 Days”, “9.488 Days”, respectively. It was unanimously decided on 06/11/2018 to CORRECT and APPROVE the provision, whose other aspects were found to be in accordance with the procedure and the law, by adding the phrases “Day” and “189.760 TL”.
Timeshare is defined as a vacation system established with a contract that includes the transfer of one or more immovables in return for the price of usage, for a period of at least three years and for a certain or to be determined period of the year and not less than one week during this period.
The timeshare contract grants the consumer a right of receivable on the immovable that is the subject of the holiday, for the use of time-divided. This right is a personal right. The consumer is not the owner of any real right, such as the right of ownership, on the real estate subject to the contract.
T.R.
SUPREME COURT
In the petition, it was requested to collect the compensation of 2500 liras, together with interest and expenses, from the defendant. The court dismissed the case, and the judgment was appealed by the plaintiff’s attorney.
After it was understood that the appeal request was within the deadline, all the papers in the file were read and the necessary considerations were taken.
The case concerns the claim for compensation due to the defendants’ child starting a fire. From the explanations in the petition, it is understood that the responsibility of the defendants as the head of the family is requested.
The legal basis for the responsibility of the head of the family is found in Article 369 of the MK. In Article 4 of the Law No. 4787 on the Establishment of Family Courts, it is stated that the cases and affairs arising from the 2nd book of the MK will be resolved in the Family Court. In the concrete case, since compensation is requested based on Article 369 of the MK, such a case should be examined and concluded in the Family Court. The fact that the merits of the work was examined by the court, regardless of the direction of duty, is the reason for reversal.
In this respect, it was unanimously decided on 18.04.2011 that the written verdict was inaccurate, and the appeal objections were valid for these reasons, regardless of the principles explained above, and that the judgment be OVERFINED pursuant to Article 428 of the HUMK and that the appeal fee in advance be returned to the appellant upon request.
The objection period to the administrative fine is generally 15 days according to the 27th article of the Misdemeanor Law No. 5326. The objection period starts from the notification of the administrative fine to the person concerned.