Transcript Slide 1

Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Yaşar University
Faculty of Economics andAdministrative
Science
Introduction to Law – Lecture Notes
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Source: Aybay,R. Introduction to Law 2011;
Gözübüyük,Ş.Hukuka Giriş 2010
1
 Legal





rules related to
Personality
Marriage, family relations
Property
Succession
obligations
 The
fundamental source of Turkish civil law is
CIVIL CODE


First Turkish Civil Code was adopted from
Switzerland in 1926
In 2002, new version of Civil Code was enacted
 Consist


of
a Preliminary Chapter and
Four Books




Book One---- Law of Persons (Article 8-117)
Book Two----- Family Law (Article 118-494)
Book Three----- Law of Succession (Article 495-682)
Book Four------ Law of Property (Article 683-1027)
 Preliminary


Chapter of Turkish Civil Code
Article 1-7
Provisions regulated in “Preliminary Chapter”
are the general principles which are applicable
to all of the branches of private law.

Article 1 of Civil Code
A-Application and sources of Law :
“The law must be applied in all cases which come with in the
letter or the spirit of any of its provisions.
Where no written provision is applicable, the judge shall decide
according to customary law and, in default there of, according to
the rules which he would lay down if he, himself had to act as
legislator.
Herein he must be guided by legal doctrine and case law.”

Law Making Function of Judge
Where provisions are inapplicable,
the judge should decide according to
a- the existing customary law
b- in default there of, the rules he would lay down,
if he himself had to act as legislator.

Article 2 of Civil Code
Conduct in good faith
“Every person is bound to exercise his rights and
fulfill his obligations according to the principles of
good faith
 The legal order does not sanction the manifest abuse
of a right”



Article 3 of Civil Code


Bona fides
“Bona fides is presumed whenever the existence of a
legal position is dependent on the observance of good
faith.
However, no person can plead bona fides in any case
where he has failed to exercise the degree of care
required by circumstances.”
 Article


4 of Civil Code
Judge’s Discretion
“Where the law leaves a point the discreation of
the judge or directs him to circumstances of the
case into consideration or to appreciate whether
a legitimate ground exists, he must base his
decision on principles of justice and equity”

Discretion
Public servant
 For fulfillment of any assignment or attitude
 Liberty to act







Judge’s discretion---limited
Ex. Article 27 of civil code – good causes– what are these?
ARTICLE 27-Change of name may only be claimed
from the judge.
Any change made in the name is registered in the
birth record and announced officially.
Change of name does not result with change in the
status of a person.
The person suffering damage due to change of name
may litigate within one year as of the date of
notification of this fact claiming abrogation of the
judgement given for change of name.
 Law
making- discretion----Differences
 Law making

No provision applicable (neither in the law nor in
the customary law) to the legal conflict
 Discretion



There is applicaple legal rules but GENERAL
Within the limits mentioned in the laws- choices
Interpretation and fill in the gaps
No arbitrary(keyfi) usage
 Act in conformity with the followings:







Within the limits of discretion
Abide by the conditions (if mentioned) required by
law
Equity rule
Choice should be compatible with laws
Legal grounds(gerekçe)– reasons should be mentioned
Briefly: judge shall take into consideration
The position of the parties
 the characteristics of the conflict
 Equity
 Law

 Article

“The general provisions of this Code and Code of
Obligations apply mutatis mutandis to all private
law relations”
 Article


5 of Civil Code
6 of Civil Code
Burden of Proof
“In the absence of a special provision to the
contrary, each party is bound to prove the
existence of the facts on which he bases his
right.
 Article



7 of Civil Code
Proof by public documents
“Entries made in public registries and official
deeds(duly authenticated documents) are
sufficient evidence of the facts which they state.
The proof of inaccuracy of these is not required
to be in any special form unless otherwise
provided for by law

TÜRK MEDENÎ KANUNU

Kanun No. 4721

BAŞLANGIÇ

A. Hukukun uygulanması ve kaynakları

MADDE 1.- Kanun, sözüyle ve özüyle değindiği bütün konularda uygulanır.

Kanunda uygulanabilir bir hüküm yoksa, hâkim, örf ve âdet hukukuna göre, bu da yoksa kendisi kanun koyucu olsaydı nasıl bir kural koyacak idiyse
ona göre karar verir.

Hâkim, karar verirken bilimsel görüşlerden ve yargı kararlarından yararlanır.

B. Hukukî ilişkilerin kapsamı

I. Dürüst davranma

MADDE 2.- Herkes, haklarını kullanırken ve borçlarını yerine getirirken dürüstlük kurallarına uymak zorundadır.

Bir hakkın açıkça kötüye kullanılmasını hukuk düzeni korumaz.

II. İyiniyet

MADDE 3.- Kanunun iyiniyete hukukî bir sonuç bağladığı durumlarda, asıl olan iyiniyetin varlığıdır.

Ancak, durumun gereklerine göre kendisinden beklenen özeni göstermeyen kimse iyiniyet iddiasında bulunamaz.

III. Hâkimin takdir yetkisi

MADDE 4.- Kanunun takdir yetkisi tanıdığı veya durumun gereklerini ya da haklı sebepleri göz önünde tutmayı emrettiği konularda hâkim, hukuka ve
hakkaniyete göre karar verir.

C. Genel nitelikli hükümler

MADDE 5.- Bu Kanun ve Borçlar Kanununun genel nitelikli hükümleri, uygun düştüğü ölçüde tüm özel hukuk ilişkilerine uygulanır.

D. İspat kuralları

I. İspat yükü

MADDE 6.- Kanunda aksine bir hüküm bulunmadıkça, taraflardan her biri, hakkını dayandırdığı olguların varlığını ispatla yükümlüdür.

II. Resmî belgelerle ispat

MADDE 7.- Resmî sicil ve senetler, belgeledikleri olguların doğruluğuna kanıt oluşturur.

Bunların içeriğinin doğru olmadığının ispatı, kanunlarda başka bir hüküm bulunmadıkça, her hangi bir şekle bağlı değildir.
Kabul Tarihi : 22.11.2001

The rules regulating obligations between private
persons are codified in a sperate code: Code of
Obligation
First Turkish Code of Obligation was adopted from
Switzerland in 1926
 In 2011, new version of Code of Obligation was
adopted.

But, Code of Obligation is regarded as an
integral part of the Civil Code
 The Code of Obligations consists of two main
parts:

General Principles
 Specials provisions---- sale of goods, loans, agency,
rent

 Concerns
the legal existence of person
 Article 8 of Civil Code “Every person can be
subject of rights, within limits imposed by
law, they have an equal capacity to posses
rights and duties”
 Legal personality begins with birth
 Legal personality ends at death
 Between conception (ceninin ana rahmine
düşmesi) and birth, the child is deemed to
have legal capacity, on condition that the
child borns alive (Article 28/II of Civil Code)
Persons are subjects of private law
 Law gives rights and imposes duties
 Law of Persons- rules regulating the relationships
of person in matters such as the creation and
termination of personality, legal capacity of
person
 Classification of Persons

Real persons
 Legal person--- (Example: a corporation, a
foundation-vakıf, a professional association-meslek
birliği)

Private
 Public

 capacity
to act:
 capacity to be the subject of right:
 The
legal capacity of legal persons differs
from that of real person.


They can acquire rights, own property, incur
contractual liability, sue (to be sued)
No family relations

To attain majority---- Majority(Rüşt) is attained by
reaching age of 18 years


Under 18 years- by marriage may attain majority (man
17, woman 15)
By court decision





Maturity- (Compos mentis -mümeyiz olmak)(iyiyi
kötüden ayırabilme durumu)





Completion of age of 15 years
Demand for having majority
To be heard of legal representative
benefit
To be under age (yaş küçüklüğü)
Mental disorder
Mental defect (akıl zayıflığı)
Drunkenness (sarhoşluk)
Not to be legal incapacity (Kısıtlı olmamak)
 Full
capacity
 Limited capacity to act--- Sınırlı ehliyetli
 Full incapacity
 Partial incapacity

Deals with passage of a person’s property rights
at his death

Article 35/1 of Constitution
“Every person has the right to own and inherit property”
Regulated in Civil Code (Article 485-682)
 General rule: In the absence of an express
provision made by deceased person, his estate
(tereke) will go to his close relatives upon
his/her death.If there is no one to State.
 People are free to dispose of their property at
their death


People may execute will– they may leave their
property to real or legal person they as they choose

Two types of heirs:

Statutory






Expressly provided for by the Civil Code
The heirs:
 the first line --- descendants(füru-altsoy) of the deceased
person
 Second line----If the deceased person left no descendants,
the parents (usûl, üst soy) and their descendants
 Third line--- his grandparents and their descendants
Among the members of each parental those nearest in degree
take the priority over those removed. Any predeceased person
in any degree will be represented by his/her descendents
Surviving successors
Equality between male and female successors
Appointed

Expressly and specifically designated by the deceased in a will
 According to our Civil Code, all persons having the requisite
capacity, exercising sound judgement and who have
completed 15 year have testamentary capacity.

Children born outside of marriage
Recognized by father
 Whose paternity is established by court
May inherit from their father equally to the children who were born
within the marrige


Adopted children
Treated the same as legimate natural born children of of the
deceased.
 Receives the same amount as the other chldren of deceased
 The adoptive parents will not take from adopted child’s estate if he
predeceases them


Surviving Spouse
Shares the estate with leaving blood relatives of deceased
 Together with descendants of deceased-- surviving spouse ¼
 Together with second parental of deceased---- surviving spouse ½
 Together with grandparents of deceased surviving spouse ¾. If there is
no grandmother takes the whole

 Regulates
the relationship among persons
such as engagement, marriage, divorce,
parent-child relations, adoption,
guardianship(vesayet)
 Property systems of spouses

Legal Marital Property System

Participation in the acquired property (edinilmiş
mallara katılım)

Contractual system

separation of property, shared separation of
property or communion of property

The main grounds for divorce are;
• Adultery
• Threat to life, maltreatment or severely insulting
behaviour
• Committing a crime to the degradation of the other
spouse’s integrity
• Desertion
• Mental illness
• Irreconcilable differences/incompatibility (the most
common ground )

Jurisdiction (Article 168 of Civil Code)
Jurisdiction will rest with the Court in the domicile of
either spouse or in the last place they lived together,
providing that they lived there together for at least six
months prior to the divorce suit
 Divorce
proceedings are open to the public
unless a judge, on request from either party,
decides to hold a closed or private hearing.
 A divorced woman cannot legally remarry
until 300 days have passed since the divorce,
unless she obtains permission from the court.
 The
acquisition and loss of property rights
 The content and the limits of rights over
movable& immovable things
 Registration and transfer o property
 Mortgage (ipotek)
 IMPORTANT:
Some problems related to
property rights subject to different law--not Law of Property

Eg: In case of expropriation of the immovable
property by State or other public corporate
body.--- Law of Expropriation
 1926---Swiss
Code of Obligation was adapted
by Turkey.
 In January 2011, Grand National Assembly
adopted the new version.
 1st of July 2012, the new Code of Obligation
entered into force
 Subject
matter of the Code Enforceability of
obligations through legal proceeding.

The legally enforceable obligation derives
from bilateral relationship

One party asks for from the counter party to act
in a certain manner

Essential elements of legally enforceable
relationship:


Parties
 Eg: the creditor and debtor
Performance (edim)
 Action or service that the forms the subject matter
of the obligation---- the performance of which the
creditor may demand from debtor
 Obligations
of Contractual Origin
 Obligations
in Tort(haksız fiil)
 Obligation
arising from Unjust enrichment
(sebepsiz zenginleşme)
 Contract:
An agreement that is enforceable
which creates rights and duties between
parties
 The elements for valid contract




Mutual Consent of the parties (offer and
acceptance)
Legal Capacity
Legal Subject Matter
Formalities in some cases
 Every
contract should have legal ground
(hukuksal neden)

Eg: Sale contract– obligations constitute legak
ground
IMPORTANT: In the formation of contract the
agreement between parties may
 Express OR
 Implied
 Contract
can be written or unwritten.
 Contract does not need to be writing – to be
binding
 Unless otherwised mentioned by law,
contracts are valid without a special form
 But:
A contract of guarentee should be
written. WHY?

Code of Obligation requires written form for the
validity
 To
have a valid contract each party must
have legal capacity to consent and consent
given must be genuine (gerçek)

Must not be obtained by

E.g. Fraud (hata) or duress (ikrah)
 The
legality of the subject matter of
contract.

Eg. Contracts concerning black market
(karaborsa) or smuggling
 There
is no voluntary agreement
 It derives from an obligation imposed by law
for persons to act in a prudent manner and
cause injury to the personal or property
rights of another
 Eg:
Reckless driver
A
general equitable principle that no person
should be allowed to profit at another's
expense without making restitution for the
reasonable value of any property, services,
or other benefits that have been unfairly
received and retained.
 Eg: Second payment for the same debt.
 Shortly,
it is a branch of law that covers
commercial activities concerning production,
interchange and consumption.
 In
the public- private law distinction, it takes
place in private law
 It
is a body of rules applicable to commercial
relations and organisations
 Introductory
Chapter (Article 1-10)
 Book One: Commecial Enterprise
 Book Two: Corporate Law


Partnership– capital invested
Partnership– personal identities of partners
 Book
Three: Negotiable Instruments
 Book Four: Transport Business
 Book Five: Maritime Law
 Book Six: Insurance Law

New development:
One man company---single member partnership
 These partnerships may have organs such as: Board of
Directors, auditing units
 Types of partnerships:



Partnerships where the salient feature is the capital
invested
 Joint stock companies
 Limited libility company
 Commandite partnership whose capital is divided into
shares (sermayesi paylara bölünmüş kommandit şirket)
Partnerships where the personal identities of the partners
rather than capital are important
 Collective company (general partnership)
 Commandite companies
 Usually
all partners participate in running
business and share equally profits and loses
 Partners must have full confidence to each
other
 Unless otherwise provided in the partnership
agreement, each partner entitled to act
alone for the partnership
 Each partner is individually and personally
liable for the debts of the partnership
 Each one of the partners will be responsible
for any act of the others, so long it was done
in the interest of the partnership
 Personal
Liability: Not only will the assets of
the partnership be applied to pay off the
debt, but the personal property of the
partners including their personal assets can
be used to pay the debt.
 Article
304-328 of Commercial Code
 Two types of partnership

Commanditaires (kommanditer)




Liability of partners is absolute
They are liable for all debts and obligations of the firm
Only real partner can be general partner
Partners en commandite (kommandite)

At time of the formation of the partnership,
contribute a certain amount of capital and are not
liable for the obligations and debts of the firm beyond
that amount.
Capital is the dominant factor
 At least one single or legal person may establish
the company
 Ownership in a corporation is distributed by legal
instruments called shares
 The person who holds shares: Shareholder
 Share: the monetary value of the ownership that
the corporation assigns to each share
 Individual partners do not have any personal
liability for the corporation’s debt and
obligations:No personal liability of shareholders

 Regulated
in Article 573-644
 At least one single or legal person may
establish the company
 The number of the partners may not exceed
50
 The liability of limited partnership is limited
by the amount of capital
 There is personal liability for tax debts of the
company and the debt of the other partners
 Minumum capital: 10.000 TL
 Aim:
to secure by mutual assistance and
support the common economic advantage of
the partners.
 Valuable
documents
 Used in commercial transactions
 Circulated like money
 Example: Corporate share certificates, bills
of lading, cheques
 Documents represent money


Freely traded
Exchanged like money
 States



Its own legal system
Its own laws--- eg. Contract, familiy,
The law can vary from one state to anther
 Mobility

& International Trade
Eg. Turkish company imports goods from
Germany


Companies based in two country
Different legal system
 It
is branch of law that specifically deals with
conflict of law problems amongst state.
 AIM: not to solve the substantive problem

To provide a framework of legal rules to determine
which state’s law applies to a legal dispute
 Types:



Conflict of Law
Law of Nationality
Law of Aliens

Conflict of Law:

Question: Which state’s law shall be applied to the
dispute?
 1- Which court shall have jurisdiction to decide the
case?
 2- Which State’s substantive law shall be applied to
the legal conflict?

Jurisdiction: Before answering the question about
“substantive law”, the question about “jurisdiction”
 CASE
1:
 The contract between two Turkish national
living in Germany
 The subject of the contract is sale of real
estate located in Izmir
 Dispute arises breach of contract
 German Court or Turkish Court?
 Which Court has jurisdiction?
 The
first court seized must make the
determination by applying its own national
conflict of law rules.
 Eg. German Court – German Conflict of Law
 IMPORTANT:
Only the court that has proper
jurisdiction can answer the second question
 CASE
2
 A contract signed in Italy
 Parties: Turkish Company and French
Company
 Subject of the contract: delivery of goods in
Spain
 Head office of Turkish Company is in Istanbul
 Breach of contract
 Turkish Company applied to Istanbul
Commercial Court.
The Court (Istanbul Commercial Court) should ask: Do
I have jurisdiction– Do I have legal power to hear the
case?
 Istanbul Court only decide whether it has jurisdiction
or not?
 If the answer is yes than the Court should answer the
second question. “ Substantive law”- Which law can
be applied to the merits of the case.
 Probable:




Italian law--- law of the place where the contract was
made
Turkish law--- law of the place where the case is being
heard
Spanish law--- law of the place where the contract is to
be performed
 The
rules to choose the applicable law in
concrete case --- according to Private
International Law (conflict of law)
 IMPORTANT: The conflict of law rules of a
country may indicate that in a particular
case the applicable law is another country’s
law.
 CASE
3
 German woman
 French man
 Marriage in Turkey
 Legal problem: Bridge’s capacity
 “Capacity
to marry is governed by national
law of spouses”– Turkish Code of Private
International Law- Article 12(1)


Bride’s capacity German Law
Bridegroom’s capacity French Law
 Law
of Nationality:
 Necessity of determination of the
nationalities of the parties in the resoultion
of the dispute. First
 May be problem– if there is more than one
nationality or none (stateless)

Marriage may confer nationality automatically or
through certain procedure
 Fundamental
principles of Turkish citizenship
law


Article 66 of Constitution
Law of Turkish Citizenship
 Defnition
of Turkish:
 “Everyone
bound to the Turkish State through
the bond of citizenship is a Turk”
 Citizenship



can be acquired
either blood relations that is through parentage
Or being born in certain country
Or by being conferred with citizenship upon a
formal application
 The
laws and practices related to citizenship
differ:



USA- being born in certain country
Germany- not automatically grant citizenship to
everyone bon in Germany
Israil---those who are Jewish
 Turkey:
 blood




relations that is through parentage
Citizenship of children follows that of their
parents
Place of birth is not importance
The father or mother of a child is Turkish, child is
Turk
If the child born in Turkey of foreign parents if
they can not have any nationality of other state
shall have Turkish citizenship
 Dual




Nationality
May differ from one country to another
Turkish practice has permissive attitute
Constitution Article 66 says:
“no Turk shall be deprived of citizenship unless
he commits an act incompatible with loyalty to
the motherland. Recourse to the courts against
the decisions and proceedings related to
deprivation of citizenship shall be denied.”
 Law
of Aliens
 Regulates the rights accorded by a state to
persons not having the nationality of that
state.



Legal rules that regulates the ability of nonTurkish nationals to work, own property, make
investments
Traditionally, political rights have been denied to
aliens
Turkish Constitution: the restrictions imposed on
fundamental rights of aliens must be in
conformity with the standarts of international
law (Article 16)