- Law Firm
Main Number: 2019/7271
Decision Number: 2019/9780
“Text of Justice”
COURT: Enforcement Law Court
Upon the request of the creditor upon objection, the file regarding this matter was sent to the office within the time limit of the court decision, the date and number of which is written above.
In the debtor’s application to the enforcement court; Since it was understood that the vehicle with license plate number 01 KB 476 belonging to the Municipality, on which the lien was placed, was allocated to the public by the decision of the city council, he demanded the removal of the lien on the vehicle. , the court decided to accept the case and the creditor appealed the decision.
In the 15/last article of the Municipal Law No. 5393; The regulation “The property of the municipality that is actually used in the public service and the tax, duty and fee revenues collected by the municipality cannot be sequestered”. According to this article, in order for the municipality’s complaint about the absence of lien to be accepted, liens must actually be used in public service.
According to the Enforcement and Bankruptcy Law and the principles of enforcement law, the main thing is to ensure that the creditor gets his debt, and as a rule, it is possible to confiscate all the assets of the debtor. There must be a legal regulation in order not to confiscate a property. Since non-attachment is an exceptional situation, the regulations in this direction should be interpreted narrowly.
Accordingly, it is indisputable that in order for a movable or immovable property belonging to the debtor municipality to be non-seizable, that property must be used in public service. However, in order for a good to be considered to be actually used in public service, that good must be found suitable for the purpose of carrying out the public service.
In the concrete case, it is understood that the vehicle belonging to the debtor municipality, which is the subject of the lien complaint, is the mayor’s official vehicle. In the light of the principles explained above, it should be emphasized whether the mayor’s vehicle is necessary for the municipality to perform its public service and whether a vehicle allocated as an official vehicle is actually used in public service.
Article 4 of the Vehicle Law No. 237 regulates who will be given an office vehicle, and the mayor is not one of the persons to whom an office vehicle will be allocated according to the aforementioned law.
On the other hand, the use of the vehicle as an official vehicle does not mean that it is actually used in public service, and the mayor does not have to have an official vehicle in order to perform his public service. Since the duties of municipalities are explained in Article 14 of Law No. 5393, mayors are not obliged to have official vehicles in order to fulfill these duties.
In this case, it would not be appropriate for the court to accept the complaint with a written reason instead of rejecting it.
CONCLUSION: Acceptance of the creditor’s appeals and the decision to overturn according to Articles 366 of the EBL and 428 of the HUMK for the reasons written above, the possibility of rectifying the prepaid fee within 10 days from the notification of the decision, if requested, 10/06. It was unanimously decided on /2019.