Transcript Introductıontolaw

INTRODUCTION TO
LAW-SECOND PART
Dr. Özlem Döğerlioğlu IŞIKSUNGUR
Yaşar University
Faculty of Economics andAdministrative Science
Introduction to Law – Lecture Notes
PRIVATE LAW
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
PRIVATE LAW-SUMMARY
 Concerned with relations and conflicts among individuals as private persons
 All persons are considered equal--- equality in acquiring private rights
 Basis of legal obligations: Voluntary agreements
 Legal obligations: Usually billateral agreements
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
BRANCHES OF PRIVATE LAW
 Civil Law
 Commercial Law
 Private International Law
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW- Turkish Civil Code
 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)
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Preliminary Chapter of Turkish Civil Code
 Preliminary Chapter of Turkish Civil Code
 Give idea about basic concepts of private law
 Article 1-7
 Provisions regulated in “Preliminary Chapter” are the general principles which are applicable to all legal
relations
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Preliminary Chapter of Turkish Civil Code
 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
Application of legal orders: written provisions-customary law-judge made law
Where written 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.
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Preliminary Chapter of Turkish Civil Code
 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.”
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Preliminary Chapter of Turkish Civil Code
 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
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Preliminary Chapter of Turkish Civil Code
 Using of judicial discretion
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW: Preliminary Chapter of Turkish Civil Code
 Article 5 of Civil Code
 “The general provisions of this Code and Code of Obligations apply mutatis mutandis to all private
law relations”
 Article 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
IMPORTANT!
 The rules regulating obligations between private persons are codified in a sperate
code: Code of Obligation
 First Turkish Code of Obligation was adapted 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,(satım) loans,(ödünç) agency,(velakaet) , rent (kira)
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Law of persons
 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”
 Persons can be subject of rights under Civil Code (animals and things can only be
objects over which the rights exercised)
 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)
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Law of persons
 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, the protection of
dignity and honour of the person
 Classification of Persons
 Real persons
 Legal person--- (Example: a corporation, a foundation-vakıf, a professional association-meslek
birliği)
 Private
 Public
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Capacity
 Only a person who has legal capacity may enjoy certain rights under the law
 The law shall recognize the acts of the person as having legal effect
 Ex: Contract– The person who doesn’t have capacity is not entitled under law to enter into
contractual relations- if does the contract shall be void or voidable depending on the type of the
incapacity involved
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Capacity
Capacity
 capacity to act: fiil ehliyeti, hakları kullanma ehliyeti
 capacity to be the subject of right: hak ehliyeti; haklardan yararlanma ehliyeti
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Law of Persons
 The conditions of capacity to act of real persons
 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
 Completion of age of 15 years
 Demand for having majority
 To be heard of legal representative
 benefit
 Maturity- (Compos mentis -mümeyiz olmak)(iyiyi kötüden ayırabilme durumu)
 To be under age (yaş küçüklüğü)
 Mental disorder
 Mental defect (akıl zayıflığı)
 Drunkenness (sarhoşluk)
 Not to be legal incapacity (Kısıtlı olmamak)
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW-Law of Persons
 Classification of real person with respect to their capacity
 Full capacity
 Shall be responsible from illegal attitutes
 Limited capacity to act--- Sınırlı ehliyetli
 Attained majority
 Can not realise some transactions by themselves
 Permission is required for some transactions
 Partial incapacity –Sınırlı ehliyetsiz
 Full incapacity
 Has no maturity
 Transactions are not valid
 They are not responsible
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW- Law of Succession
 Law of Succession: Body of rules applied to determine who will inherit the property of the
deceased and how the estate will be divided if there is more than one heir
 Deceased
: The person dies
 Estate
: The totality of the property belonging to a person
 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 495-682)
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW- Law of Succession
Heirs(mirasçılar)
 Two types of heirs:
 Statutory
 Appointed
Statutory Heirs
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
CIVIL LAW- Law of Succession
Types of heirs
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.
 The person can dispose of his/her estate at death by a will prepared during his /her lifetime
 May choose the heirs and the method of distribution of the estate
 Unless the validity of the testament is contested the last will of testator are respected
 Restrictions on freedom of testamentary disposition:
 The rights of statutory heirs are protected by law through reserved portions
 Ex. Descendants are entitled to half of the decesead’s estate and can not be inherited of this
share by any of deceased.
 Inheritence Agreement(contract)—Miras Sözleşmesi
 A contract whereby a person promises to leave upon his/her death the entire estate or a spesific part of it to the
other party
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
CIVIL LAW- Law of Succession
Other person who may INHERIT
 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 children of deceased
The adoptive parents (evlat edinen) will not take from adopted child’s estate if he predeceases them
Heirdom of the adopted child will continue in his/her own family
 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.
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
CASE 1
 Deceased person died in 1998 as single and childless. Deceased person left two
brother . One of this brother died in 2003 as widowed(dul) and having one
adopted child.
 Please show the scheme of inheretence of deceased person
 Please show the portion of inheritence of deceased person
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
CASE 2
 Deceased person died in 1962 as married and having 3 children (A,B,C). His wife
died in 2000. A died in 2001 as single and childless. B died in 2003 as
widowed(dul) and having two children (one of his child is born outside of marriage
but recognized by father)
 Please show the scheme of inheretence of deceased person today
 Please show the portion of inheritence of deceased person
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
CASE 3
 Deceased person died in 1962 as married and having 3 children (A,B,C). A died in
1998 as widowed(dul) and having two children (one of his child is born outside of
marriage but paternity demand rejected by court)
 Please show the scheme of inheretence of deceased person today
 Please show the portion of inheritence of deceased person
Dr. Özlem Döğerlioğlu Işıksungur
Source: Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Family Law
 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.
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Famıly Law
 Some of divorce grounds





Adultery (Zina)
Crime and dishonost life style
Leaving
Mental Disease
Irreconcilable differences
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Law of property
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Law of Obligation
 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 law of obligation is the formation, validity and enforceability
of obligations through legal proceedings.
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Law of Obligation
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Types Of Oblıgatıons
 Obligations of Contractual Origin
 Obligations in Tort(haksız fiil)
 Obligation arising from Unjust enrichment (sebepsiz zenginleşme)
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
A- Obligations of Contractual Origin
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
A- Obligatıons Of Contractual Orıgın- Cont.
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
A- Obligatıons Of Contractual Orıgın- Cont.
 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. Threat, Fraud (hata)
 The legality of the subject matter of contract.
 Eg. Contracts concerning black market (karaborsa) or smuggling
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
A- Obligatıons In Tort
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
A- Obligatıons Arısıng From Unjust Rıchment
 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.
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Commercial Law
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Commercıal Code
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Commercıal Partnershıps
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Joınt Stock Company
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Lımıted Lıabılıty Company
 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
 Minumum capital: 10.000 TL
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Co-operatıves
 Aim: to secure by mutual assistance and support the common economic advantage
of the partners.
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Negotıable Instruments
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 Types:
 Conflict of Law
 Law of Nationality
 Law of Aliens
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law

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”
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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?
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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.
 Do you think it is true?
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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.
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 CASE 3
 German woman
 French man
 Marriage in Turkey
 Legal problem: Bride’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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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”
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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.”
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Private Internatıonal Law
 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 non- Turkish 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)
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
PUBLIC LAW
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
STATE
 Definition:
A defined territory, a permanent population and sovereignty.
 State as a political organization possessing the ultimate authority to govern its own
population within its territory.
 Elements:
 Territory
 Population
 Sovereignty
A-TERRITORY
 Definition
“the sphere that State has the exclusive competence its laws and take others forms
of action”.
 This power includes:
prohibiting other governments from exercising authority in the same area without
the consent of the State.
STATE’S TERRITORY
 Includes not only the surface land but the airspace above, and for States bordering
seas, the coastal waters and territorial seas.
 The surface land territorial boundaries for Turkey were established by various
international treaties.
 The extent of Turkey’s territorial sea, otherwise known as “territorial waters” or the
“maritime belt”, was established as being 6 miles (1 sea mile equals 1852 meters) by
the Territorial Sea Law (Karasuları Kanunu).
 The airspace (territory) of a State includes not only the atmosphere immediatly
above its surface land territory but above its territorial seas as well.
B-POPULATION
 Constitues the physical basis for the existence of a State.
 The human element is the State’s life source, its character given by the economic,
cultural, spiritual and historical traits of the community, both individually and
collectively.
 Each State can confer nationality on the basis of the criteria it establishes.
 Any State may, at its discretion, confer nationality on any person, in order to be
recognized by other State’s it must be based on internationally accepted standards.
 Standarts:
 -child’s nationality determined by the parent’s nationality: Turkey
-child’s nationality determined by the place of birth: USA
CITIZENSHIP(NATIONALITY)
 Definition:
 The relationship between State an the individual
 Reciprocal relationship between the individual and the State which involves mutual
duties, obligations and responsibilities.
 Not only persons (human beings) but also juridical (legal) persons ( such as
corporations) have nationality.
 Ships and airplanes may have “ nationality”, which is denoted by the nationality flag
under which they are entitled to operate.
C- SOVEREIGNTY
 Spiritual element
 Two Types:
 External sovereignty
 Internal sovereignty
 In international relations the external aspect of sovereignty is :
 independence, which means the power of a State to determine its own foreign policy
 Question of who possesses sovereıgnty.
 Under the Turkısh Constitution, sovereignty belongs uncondinaally and without any
restriction to the Nation.
2-BRANCHES OF PUBLIC LAW
 Five main branches:
 Constitutional Law (Anayasa Hukuku)
 Administrative Law (İdare Hukuku)
 Criminal Law (Ceza Hukuku)
 Procedural Law (Usul Hukuku)
 Public Internatioanal Law ( Kamusal Uluslar arası Hukuk; Devletler Genel Hukuku)
CRIMINAL LAW
 Belongs to public law
 Concerned with criminal offences.
 Identifies the acts and omissions that are subject to punishment prescribed.
 Certain acts that violate the law are matters of public concern and not simply personal issues
between the wrongdoer and the person who has suffered.
 in a criminal court (ceza mahkemesi).
 Such acts are considered to be threats to the public order and therefore they are the
concern of the whole community.
Sources of Criminal Law
 Turkısh Criminal Code ( Türk Ceza Kanunu,TCK)

in 2004, replaced the former Criminal Code of 1926.
 Law of Misdemeanours (Kabahatlar Kanunu)
 The code of Military Criminal Law (Askeri Ceza Kanunu No 1632, of 22 May 1930)
 In addition, there are statues regulating specific fields criminal law.
Two Major Aspects to Criminal Law
 The definition of criminal behaviour
 The specification of the corresponding punishment
Dr. Özlem Döğerlioğlu Işıksungur
Aybay,R. Introduction to Law 2013; Gözübüyük,Ş. Hukuka Giriş 2010
Source:
Definition Of Crime
 An act which is against the law and is punishable by law.
 It is the State that must prosecute and punish the wrongdoer.
Elements of Criminal Act
 A criminal acts is composed of three elements:
 The act, or omission to act (“bad act”)
 The requisite intention: criminal intent or recklessness
 Illegality , (action) of the defendant should not be permitted or excused by law for certain special
reasons such as legitimate self-defense
A fundamental principle of modern criminal law
 In order to establish a legal guilt:
 “There must be a specific provision in the law which defines the act as a crime”
 “There can be no crime without law”
 An act constitutes a crime if and only if, it is defined as a crime by a law currently in
force.
 Article 2(1) of Criminal Code:
“Nobody may be punished or subjected to security measures for an act which is not
expressedly defined by law as a crime; and no one can be subject to punishment or a
security measure not prescribed by law”
 Article 38 of Constitution:
“Punishments and security measures in lieu of punishment(ceza yerine geçen güvenlik
tedbirleri) shall be prescribed only by law”
 Penal provisions may have retroactive effect when they are n favor of the person
to whom they are applied.
 If the punishment for acrime is reduced under anew law, this will benefit persons
already convicted and sentenced under the former,stricter law.
Punishment
 Punishment must be specifically defined by law
 There can be no punishment without law
 Definition of the crimes& prescription of punishment by statute
 Limits of law judge’s discreation in determining the punishment to be imposed
 Punishments:




Life imprisonment
Imprisonment
Fine
Alternative sanctions
 Voluntary work in a public service
 Short terms of imprisonment
Punishment
 Aim of the punishment:
 Special prevention (İslah)
 To deter the particular offender from future criminal conduct.
 General Prevention
 To deter others who might be tempted to commit crime.
Differences. Public Law-Private Law
PUBLIC
PRIVATE
Belongs to public law
Belongs to private law
State is essential party
Complaining party is a private party
Except in certain cases, State initiates Individual must initiate the legal
the criminal proceeding on behalf of action in his name
the victim of the crime and general
community
Commencing a legal action: State
prosecutes
Private civil suit: Civil Parties sue
State is obliged to prosecute a
person accused of commiting a
crime.
Personal&voluntarary choice of
individual to take or not to take a civil
action against counter party
The Results: prison sentence or fine
The result: no prison. The primary
object is to punish the offender but to
afford redress to the aggrieved party.
LAW OF PROCEDURE
 Law contains:
 substantive (maddi) and procedural aspects, or
 adjectival aspects.
 Substantive law: determines the content and meaning of the laws (norms) to be
applied and by whom.
 Procedure relates to the machinery of justice, to the form, manner and order of
conducting civil, criminal and administrative cases, e.g what laws and rules are apply
(choice are to be submitted, what presumptions apply, when a document must be
filed, what questions can or cannot be asked.
LAW OF PROCEDURE
 The body of rules applied by the court when performing its duties.
 Functions:
 1- To establish whether the rules of substantive law have been broken.
-the basis of substantive law.
 2- To set up the juridicial machinery and lay down a seriesof procedural rules to resolve disputes.
 Sub-branches:
 the law of civil procedure (medeni usul hukuku; hukuk muhakemeleri usulü),
 the law criminal procedure (ceza muhakemeleri usulü)
A- Civil Procedure
 concerns the enforcement of a civil claim through private action before a court of
law.
 Example; in a defamation case (iftira) the rules of civil procedure will determine inter
alia how the complaint must be written, what laws will be applied to decide if the
plaintiff (complaining party) was defamed, what type of evidence can be used,
 In civil matters the public interest is not as prominent as in criminal cases.
 The new code introduced certain new concepts such as pre-trial hearing
(conference) between the parties ( or preliminary examination; ön inceleme” by the
court)
B- Criminal Procedure
 is concerned with the investigation, prosecution, trial and punishment of crimes.
 The methods and procedures to determine how people accused of committing a
crime will be prosecuted.
 An important procedural principle:
 No one can be convicted unless proven guilty in a court
B- Criminal Procedure
 Criminal responsibility is personal ( Constitution article 38/vı.)
 No one can be punished for a criminal act commited by another, however close
he/she may be to the perpetrator.
 The fundamental source of Turkish criminal procedure is the Code of Criminal
Procedure (Ceza Muhakemesi Usulü Kanunu); No 5271, 4 December 2004.)
B- Criminal Procedure
 In criminal cases there are two parties, one is the public, represented by the public
prosecutor ( Cumhuriyet Savcısı); the other is the defandant, who is accused of
having commited a crime.
 The prosecutor asserts the guilt of the accused; in civil proceedings the plaintiff
asserts same liability ( responsibility)on the part of the defandant.
 “burden of proof»
 The prosecution is obliged to prove that the alleged crime was comitted by the
accused.
 “Everyone charged with a penal offence has the right to be presumed innocent until
proven guilty”
B- Criminal Procedure
 The court having proper venue is court where the offense was commited.
 If it is not known, the court of place where the accused is arrested has venue.
 Exceptions to this general rule are provided for in the Code Criminal
Procedure.(Articles 12-21)
Difference-Criminal&Civil Procedure
 In Civil Law the judge is bound by the request and claims put forward by parties
 In Criminal Law, the judge is the ultimate arbiter of the law to be applied and
punishment to be imposed, not being bound by the request of the parties
Turkish System
 The court decides issues of the fact and law
 Guilt are decided by the judge and not a JURY.
 A jury is a body of laypersons(people not having legal training) who have been given
authority by law to decide factual issues as well as the guilt or innocence of an
accused in a criminal case, or whether a party is at fault or not in a çivil case.