Criminal Tort

Supreme Court of the Republic of Turkey

  1. Criminal Chamber
    Basis: 2013/28250
    Decision: 2016/5651
    Decision Date: 29.06.2016

THE CRIME OF BIASING CONFIDENCE DUE TO THE SERVICE – Failing to consider that the tort constituting a crime should be evaluated within the scope of TPC ARTICLE 150, numbered 5237

SUMMARY: It is not observed that the wrongful act of the accused, who is dealing with real estate, who has no negativity reflected in his criminal record, acting together with his close friend, the other accused, who is to be taken from the victim on the day of the incident, should be evaluated within the scope of the article of the Turkish Penal Code No. 5237. is the reason for the breakdown.

Case and Decision: By appealing the judgment given by the Local Court; The file was discussed according to the nature of the application, the type of punishment, its duration and the date of the crime:

I) Deprivation of liberty regarding the accused … and …; As for the examination of the appeals against the provisions established on the offenses of breach of trust due to service;

According to the content of the file and the minutes of the hearing, the legally valid and suitable evidence gathered and discussed at the place of decision, the reason and the discretion of the Board of Judges; Since there was no procedural and illegality in accepting and characterizing that the crimes were committed by the accused, the other appeal objections were not deemed appropriate.

However;

Until the execution of their prison sentences, the defendants are deprived of exercising the rights written in Article 53/1-a-b-c-d-e of the Turkish Penal Code, however, the Turkish Penal Code 53/3. Even though it has been decided to end their deprivation of exercising the rights listed in paragraph 53/1-c of the Turkish Penal Code on their descendants, if they are released on probation pursuant to the article; Published in the Official Gazette dated 24.11.2015 and entered into force on the same date, with the decision of the Constitutional Court, dated 08.10.2015, numbered 2014/140- 2015/85 Principle and Decision, written in Article 53/1-b of the Turkish Penal Code, “election, election and the phrase “using other political rights” has been cancelled,

8/1 of the Law No. 5320. Based on the authority given by Article 322 of the Criminal Procedure Code No. 1412, the section regarding the implementation of Article 53 of the Turkish Penal Code was removed from the sentence, instead of it, “As a legal consequence of the defendants’ imprisonment for the crime they have committed intentionally, the Turkish Penal Code 53/1. to be deprived of exercising the right to elect, be elected and other political rights written in subparagraphs (a, c, d and e) and subparagraph (b); 53/2 of the same Law. In terms of the application of Article 53/1, subparagraphs (a, c, d and e) and voting and other political rights written in subparagraph (b) and in accordance with paragraph 3 of the same article, custody, guardianship and custody over their descendants as written in subparagraph (c). Not being able to use their trusteeship powers until they are released on probation from the prison sentence they are convicted of, by writing the sentence, the other aspects of which are found to be in accordance with the procedure and law, to be corrected and APPROVED,

II) As for the examination of the appeals against the accused against the provisions established for the crime of plundering;

Other appeals were not seen on the spot.

However;

Failing to consider that the wrongful act of the accused, who is dealing with real estate and has no negativity reflected in his criminal record, acted together with his close friend, the other accused, that he will receive from the victim on the day of the incident, and that the wrongful act constituting a crime should be evaluated within the scope of article 150/1 of the Turkish Penal Code No. 5237. ,

Conclusion: It was unanimously decided on 29.06.2016 that the verdict was quashed contrary to the request for the reason explained, since the appeal objections of the defendant’s defense were deemed appropriate in this regard.

Crime Of Attempted Looting

Supreme Court of the Republic of Turkey

  1. Criminal Chamber
    Basis: 2015/1208
    Decision: 2016/5621
    Decision Date: 29.06.2016

LOADING CRIME – AT THE EVENT DEVELOPING IN THE EVENT WHERE THE DEFENDANT TRIED TO HIT THE CLIENT BY WAITING THE KNIFE WHILE HOLDING THE CLIENT, AND THE CLAIM ESCAPE TO Escape, THE ACT OF THE DEFENDANT WAS ATTEMPTED TO LOOK

SUMMARY: In the incident that developed in the form of the accused, who was charged with looting, he tried to hit the complainant by swinging the knife he took out of his waist, but the complainant escaped; Without considering that the acts of the accused as a whole constitute the crime of attempted looting, making a mistake in the qualification of the crime necessitated reversal. It was decided to overturn the judgment.

Case and Decision: By appealing the judgment given by the Local Court; With the decision of non-jurisdiction dated 06.04.2015 of the 17th Criminal Chamber of the Supreme Court of Appeals, the file was discussed according to the nature of the application, the type of punishment, the duration and the date of the crime:

I- In the examination of the appeal objections against the verdict established for insulting the accused;

According to the content of the file and the minutes of the hearing, the legally valid and suitable evidence collected and discussed at the place of decision, the justification and the discretion of the Board of Judges; Since there is no procedural and illegality in accepting and characterizing that the crime was committed by the accused, other appeal objections were not deemed appropriate.

However;

Until the execution of the prison sentence is completed, the accused is deprived of exercising the rights written in Article 53/1-a-b-c-d-e of the Turkish Penal Code; however, Turkish Penal Code 53/3. Even though it has been decided to end his deprivation of exercising the rights listed in paragraph 53/1-c of the Turkish Penal Code on his descendants, if he is released on probation pursuant to the article; Published in the Official Gazette dated 24.11.2015 and entered into force on the same date, with the decision of the Constitutional Court, dated 08.10.2015, numbered 2014/140- 2015/85 Principle and Decision, written in Article 53/1-b of the Turkish Penal Code, “election, election and the phrase “using other political rights” has been cancelled,

8/1 of the Law No. 5320. Based on the authority given by Article 322 of the Criminal Procedure Code No. 1412, the section on the implementation of the 53rd article of the Turkish Penal Code was removed from the sentence, instead of it, “As a legal consequence of the defendant’s conviction with a prison sentence for the crime he has committed intentionally, the Turkish Penal Code 53/1. to be deprived of exercising the right to elect, be elected and other political rights written in subparagraphs (a, c, d and e) and subparagraph (b); 53/2 of the same Law. In terms of the application of Article 53/1, subparagraphs (a, c, d and e) and voting and other political rights written in subparagraph (b), and in accordance with paragraph 3 of the same article, the custody, guardianship over their descendants written in subparagraph (c) and not being able to use his powers of trusteeship until he is released on probation from the prison sentence he was sentenced to”, and the sentence, whose other aspects are found to be in accordance with the procedure and law, is corrected and approved,

II- As for the examination of the appeals against the verdict established for the crime of intentionally attempting to injure the accused with a weapon;

According to the occurrence and scope of the file; On the day of the incident, when the complainant was waiting in front of Ziraat Bank, which is on the connection road with the witness …, the accused came to the side of the accused, took his arm and said to the complainant, “You will give me 100-TL” and said that the complainant did not have any money, the accused said, “You will give money, if you do not give it, I will burn your house, I will kill, no one can do anything to me, they will call me … …,” he threatened the complainant, after the complainant got scared and shouted “police”, the accused tried to hit the complainant by waving the knife he took from his waist, but the complainant escaped; Without considering that the acts of the accused as a whole constitute the crime of attempted looting regulated in Articles 149/1-a, 35 of the Turkish Penal Code, mistakenly making a written judgment in the classification of the crime,

Result: It required overturning, since the appeal objections of the defendant’s defense were deemed appropriate in this respect, the verdict was reversed contrary to the request due to the explained reason, the protection of the acquired right pursuant to the 326/last article of the Criminal Procedure Law No. 1412, by sending Article 8/1 of the Law No. 5320, 29.06.2016 It was unanimously decided on.

Turnover Or Form Requirement

Shape

ARTICLE 648 – (1) In all cases, the endorsement is made in accordance with the provisions regarding the endorsement of the policy.

(2) It is sufficient to pass the endorsement and possession of the bill for the transfer.

Changing the Type of the Bill

D) Changing the type of the deed

ARTICLE 650 – (1) A deed written to a name or order can only be converted into a pregnant written deed with the consent of all persons to whom it has entitlement and debt. This consent must be written directly on the promissory note.

(2) The same rule is valid for converting maternity bills into registered or promissory notes. In this last case, if there is no consent of one of the right or debt holders, this conversion becomes effective only between the creditor who made the conversion and the person who is the direct successor to his rights.

Property Transfer Request

TO THE COURT OF FIRST INSTANCE JUDGE

Plaintiff:

TURKISH IDENTITY NUMBER :

ADDRESS :

ATTORNEY:

(Legal representatives of the parties, if any)

ADDRESS :

(Legal representatives of the parties, if any)

DEFENDANT:

ADDRESS :

CASE VALUE: …….. TL

(In cases related to the subject of the case and property rights)

SUBJECT : …./…./…. The sale of …. The realization of the transfer of the ownership of the plated vehicle on behalf of the plaintiff client consists of the submission of our request.

DESCRIPTIONS :

1-) The vehicle with license plate of …….. and …… brand vehicle by the defendant was sold to the plaintiff client on …/…/… with the sales contract of the …… journal number of the ….. Notary Public.(Annex – 1)

2-) Although the vehicle in question has been sold through a notary public, its ownership has not been transferred to the client yet. (Annex – 2) Due to the fact that the property has not been transferred, the client, as the owner, does not bear any responsibility regarding the vehicle subject to the lawsuit.

3-) Pursuant to Article 20/d of the Highway Traffic Law No. 2918, motor vehicles registered in traffic are required to be sold at a notary public, and the buyer of the vehicle in question does not appear as a client in the registration records, since the traffic registration record of the vehicle sold at the notary public is not changed. Despite the fact that a warning letter (Annex – 3) was issued to the defendant in 2006 to change the traffic record of the vehicle subject to the lawsuit, no response was given to our warning; We tried to reach him in various ways, but all our efforts to reach him were inconclusive. In this regard, the persons whose names are included in the witness list (Annex 4) attached to our petition will give an explanation of the situation, if deemed appropriate by your court.

4-) As it is known, the responsibilities arising from the traffic fines and tax debts of the vehicles that are sold at the notary public but whose traffic registration registration is not carried out belong to the former owner of the vehicle. As a result of this regulation, the client has become obligated to demand the transfer of ownership of the vehicle subject to the lawsuit.

LEGAL REASONS :

LEGAL EVIDENCES: Notary public’s sales contract dated …./…/… with journal number …. License, Notice of …. Notary public with …/ …/ … journal number, Witness statements, oath.

CONCLUSION AND REQUEST: For the reasons explained above, …. Plate …. On behalf of our client, we respectfully request that the ownership of the brand vehicle be transferred to the plaintiff client, that the attorney’s fee and litigation expenses be charged to the other party. …/ …/ …

Plaintiff’s Attorney

Lawyer

Defective Material In The Contract Of Works

If the material is provided by the contractor, the contractor is liable to the employer, like the seller, for the defectiveness of this material.

If the material is provided by the employer, the contractor is obliged to use them with due care and therefore to return the account and the surplus.

While the work is being produced, if it is understood that the material provided by the employer or the place indicated for the work is defective, or if another situation arises that would endanger the proper or timely production of the work, the contractor must immediately notify the employer of this situation; If he does not notify, he will be responsible for the consequences.

Transfer of Rights and Claims After the Litigation is Filed

SUPREME Court of the Republic of Turkey

15.law office
Date: 2015/5589
Decision: 2016/3663
Date of Decision: 23.06.2016

RECEIVABLES – TRANSFER OF ALL RIGHTS AND RECEIVABLES SUBJECT TO LITIGATION AFTER THE LAWSUIT HAS BEEN FILED – ACTIVE LITIGATION LICENSE – RESUMING THE CASE FROM WHERE IT LEFT OFF AND ENTERING INTO THE BASIS OF THE WORK AND MAKING A DECISION ACCORDING TO THE RESULT AFTER THE ATTORNEYS OF THE PARTIES HAVE BEEN COLLECTED – THE PROVISION HAS BEEN OVERTURNED

SUMMARY: after the case is opened by the court to all of the rights and receivables of the case is transferred, because the contractor who filed the lawsuit, the company replaces the active locus standi is given and needs to be continued because the basics are entered on the case and the party representatives have been gathered to conclude an appropriate decision should be made after the assessment of the case with the procedural denial was not correct when wrong, the decision found to comply corruption.

(6100 pp. K. m. 125) (6098 P. K. m. 183)

Case: hearing date and number field above written assignment examination hearing is requested by the representative plaintiff temyizen the verdict for the plaintiff on the appointed day from the conveyance area attorneys, Attorney Attorney Attorney attorney and the defendant intervene and original … with … a … I met. The liquidator of the issuing company … has not arrived. After it became clear that the appeal had been filed within the deadline and the lawyers of the parties present were listened to, the work was left to be examined and decided on another day due to the lack of time. This time, after the papers in the file were read, the need for the job was discussed and considered:

Decision: the case of the plaintiff that the defendant signed work contracts with the contractor company between the business owner and unfair deductions arising from temporary admission muaraza created with the extension of time regarding men needed by determining the period of extension of time commitment the addition of the identification and addition, on the date of temporary admission, and the identification of needs to be done to be done by default as of this date, The Restitution of the cut as the progress payment delay penalty unfair contract out of work due to creep into the year, the cost of manufacturing and the price differences in material and workmanship from the collection of receivables is related to the prompt.

After the lawsuit was filed … with a dated notice of attorney, the contractor company that filed the lawsuit filed the claim, and by the date of notification, the defendant transferred the rights to claims and lawsuits with the receivables from the business owner, and the transferee submitted the notice to the court with a petition dated the transfer, requesting the collection of the receivable.

The defendant, the deputy of the business owner, filed a judicial appeal, asked for the dismissal of the case in terms of the statute of limitations, procedure and merits, 11.5 of the contract. in its article, there is a regulation that the contractor cannot assign all kinds of rights and receivables to others without the written permission of the administration, the assignments must be issued by a notary and must meet the records and conditions required by the administration, and it argued that they do not accept it because the assignment is not valid.

… with a dated petition that he has levied, he has requested substantive intervention.

Assigned by the Prohibition of the court resides and does not indicate that it is understood that the conveyance will follow suit, because the locus standi of the plaintiff in the sense assigned field-active antagonism from denial of the license terms of procedure, the main consideration of the case given in the sense of to continue in the terms of the trial intervention, since it is understood that it is not the court of First Instance, in case of intervention where the parties are merchants of the trade is also taken into consideration the fact that the charge of a denial of the petition of the court due to procedural decision was appealed by the plaintiff by counsel assigned to the field.

Transfer of receivables (assignment) is regulated by Articles 183 and 2 of the Turkish Code of Obligations No. 6098 and 183. in the first paragraph of the article, it was accepted that the creditor can transfer the receivable to a third party without seeking the consent of the debtor, unless the nature of the law, contract or work is prevented, in the ongoing articles, the form of validity, legal or judicial transfer and effect of the transfer agreement and the provisions of the transfer have been regulated. According to these regulations, as a rule, if there is a prohibition on assignment in the contract or it is tied to the consent of the borrower and there is no consent of the borrower, the security of the receivable cannot be brought against the borrower.
Transfer of assignment of receivables is different from the subject of the lawsuit, before trial and on the assignment of the receivable and the agreed payment at the stage of the execution of the contract in the event of progressive can be done while the era of the suit as its name suggests, however, after the opening of the case can be made. 125 of HMK No. 6100, which was in force on the date of the transfer of the subject matter of the case. it is regulated in the article. Article 1 of the said article. in paragraphs a and b of the paragraph, the plaintiff’s electoral rights are shown if the defendant transfers the subject matter of the case to a third party after the opening of the case. In the case of a concrete dispute, this issue is out of our question. Transfer of the subject matter of the case by the plaintiff 125. part 2. clause in the text of the article is edited and that “after filing the case, complicated by the plaintiff happens to be the case if the person who took it replaces the plaintiff in the pending lawsuit, and the trial resumes” was called.

125/2 of the HMK, which regulates the transfer of the subject matter of the case by the plaintiff to a third person. the provision of the article provided that the person who takes over will automatically replace the plaintiff and resume the case from where it left off, on the grounds that the third party who takes over will gain the title of plaintiff by law (ipsojure) and, accordingly, the right to pursue the case and the case will continue with the new plaintiff. According to this provision, the case will proceed between the third dec who took over the case and the defendant. For this purpose, the consent of the defendant to make a decision on this issue or for the third party taking over to replace the plaintiff is not sought. (Civil Procedure Law, Competent Legal Publications 1. printing Prof. Dr. Ramazan Arslan, Prof. Dr. Yilmaz, Prof. Dr. Sema Taşpınar Ayvaz page 511 and more). If the subject matter of the lawsuit is transferred by the plaintiff to another person after the lawsuit is filed, in this case the person who has taken over will take the place of the plaintiff and continue the case that is being heard from where it left off. However, in this case, the defendant may assert his personal defense reasons against the new plaintiff (Competent Publications of Civil Procedure Law 12. printing Prof. Dr. Hakan Pekcanitez, Prof. Dr. Oguz Atalay, Prof. Dr. By Mohammad Ozeken on page 412. and the sequel).

In a concrete case, after the case was filed by the contractor … with payment of the fee on the date … with a notice of guarantee issued on the date of the case was first filed in the Commercial Court of First Instance … The receivables subject to the case in the main file No. 3, along with the rights to sue and claim. the person is transferred to …. Although the assignment was issued in plain writing, the transfer was legally realized because the liquidator of the plaintiff company accepted the contents of the assignment with a signed statement at the hearing dated. Although the title of the document in question is written as a guarantee, it is a certificate of transfer of the subject matter of the lawsuit, since it is made after the lawsuit is filed and the rights and receivables subject to the lawsuit are stated in the content that the claims and litigation rights have also been transferred. Since the plaintiff contractor was transferred to the subject of the lawsuit (respondent) … after the lawsuit was filed by the company, the plaintiff contractor replaced the company.

In this case, since all the rights and receivables subject to litigation have been transferred to … after the lawsuit has been filed by the court, HMK’s 125/2. prosecuting the contractor pursuant to Article replaces the active locus standi is given and needs to be continued because the basics are entered on the case and the party representatives have been gathered to conclude an appropriate decision should be made after the assessment of the case with the procedural denial was not correct when wrong, the decision found to comply corruption.

Conclusion: For the reasons described above, the appeals of the applicant who took over the case were OVERTURNED for the benefit of the decision by accepting the appeals, the TL trial attorney fee was taken from the defendant and given to the applicant who was represented by the proxy at the Supreme Court hearing, the appeal advance fee paid was returned to the applicant who appealed if requested, the applicant could request a correction of the decision within 15 days from the date of notification against the decision it was decided by a majority vote on 23.06.2016.

POST, VOTE AGAINST

183 Of the Turkish Commercial Code, which regulates the assignment of the receivable, that is, the transfer of the receivable. according to the provisions of the regulation in the article, which are also considered to have opposite meanings, if there is a prohibition on the transfer of the receivable in the agreement on the actual legal relationship, or if there is a condition of the creditor’s consent for the transfer to be valid, and if there is no such consent, there can be no mention that the transfer of the receivable is valid. The transfer of receivables is regulated in the Law of Obligations and is a saving transaction related to material law. Its validity and consequences must also be assessed in accordance with the provisions of the law in which it is regulated. 183, since there is also no special regulation in the TBK. and further, the conditions of validity of the articles are valid and assailable at all stages, and the transfer of the receivable must be after the lawsuit has been filed against the receivable 183. it does not require that the search for conditions in the article be abandoned.

If the transfer of the receivable is related to material law, but this transfer is after the lawsuit has been filed; who will have the title of plaintiff or defendant, how the procedural rights will be used by who is related to procedural law. Therefore, the rules of procedure contain regulations on what actions will be taken if the subject of the lawsuit is transferred by the creditor or debtor. The provision contained in the HMK on this issue is 125. the article is regulated in the second paragraph of the transfer of the plaintiff’s subject matter to the lawsuit. According to this; if, after the opening of the case, the subject matter of the case is to be transferred by the plaintiff, the person who has taken over takes the place of the plaintiff in the case under consideration and the case continues from where it left off.

Extraordinary Termination

1.Important Reasons
ARTICLE 331- Each of the parties may terminate the contract at any time in accordance with the statutory termination notice period in the event of the presence of significant reasons that make the continuation of the lease relationship unbearable for it.
The judge, taking into account the circumstances and circumstances, decides on the monetary consequences of the notice of extraordinary termination.

2.Bankruptcy of the tenant
ARTICLE 332- If the tenant becomes bankrupt after the delivery of the leasehold, the lessor may request that guarantees be given for the rental fees to be processed.
The lessor gives an appropriate period of time in writing to the lessee and the insolvency table for the issuance of guarantees. If no assurance is given to him within this period, the lessor may terminate the contract immediately without complying with any termination notice period.

3.Death of the tenant
ARTICLE 333- If the tenant dies, his heirs may terminate the contract for the end of the nearest termination period by complying with the legal termination notice period.


(Turkish Code Of Obligations)