The relationship between the contractor and the subcontractor, the subject of our law since 1936 by the Law No. 3008, has been subject to significant regulations by the Law No. 4857 due to malicious law enforcement in working life. The founding elements of the contractor-subcontractor relationship regulated in Article 2 of the Labor Law No. 4857 are categorized in titles; the existence of two separate employers as the contractor and the subcontractor, the work given to the subcontractor is a job related to the production of goods and services, the work given to the subcontractor being an auxiliary job related to the production of goods and services or a part of the main job that requires expertise due to the necessity of the business and the technological reasons, the subcontractor’s workers being employed in the workplace belonging to the main employer, and employing the employees of the subcontractor only by being assigned to the job received from the contractor. A kind of collusion has been regulated in the Labor Law regarding the contractor-subcontractor relationship. Accordingly, if an employees of the contractor are recruited by the subcontractor and their rights are restricted, or if the contractor has established a contractor-subcontractor relationship with his former employee, it is stated in the law that the contractor-subcontractor relationship will be considered to be based on collusion. The contractor-subcontractor relationship has brought a broad perspective in terms of the responsibility of the contractor. The contractor-subcontractor were held responsible for the receivables of the employees, and the employees were given the right to apply to contractor of their choice or to both. In this study; first of all, the concepts of contractor and subcontractor and the elements of the contractor-subcontractor relationship are included. Then, the collusion in the contractor-subcontractor relationship was examined. Eventually, joint liability situations in the contractor-subcontractor relationship are discussed.
{"title":"The Joint Liability in Contractor and Subcontractor Relationship in Turkish Labor Law","authors":"Seda ÖZGÜL EKİZ","doi":"10.54049/taad.1183592","DOIUrl":"https://doi.org/10.54049/taad.1183592","url":null,"abstract":"The relationship between the contractor and the subcontractor, the subject of our law since 1936 by the Law No. 3008, has been subject to significant regulations by the Law No. 4857 due to malicious law enforcement in working life. \u0000The founding elements of the contractor-subcontractor relationship regulated in Article 2 of the Labor Law No. 4857 are categorized in titles; the existence of two separate employers as the contractor and the subcontractor, the work given to the subcontractor is a job related to the production of goods and services, the work given to the subcontractor being an auxiliary job related to the production of goods and services or a part of the main job that requires expertise due to the necessity of the business and the technological reasons, the subcontractor’s workers being employed in the workplace belonging to the main employer, and employing the employees of the subcontractor only by being assigned to the job received from the contractor. \u0000A kind of collusion has been regulated in the Labor Law regarding the contractor-subcontractor relationship. Accordingly, if an employees of the contractor are recruited by the subcontractor and their rights are restricted, or if the contractor has established a contractor-subcontractor relationship with his former employee, it is stated in the law that the contractor-subcontractor relationship will be considered to be based on collusion. \u0000The contractor-subcontractor relationship has brought a broad perspective in terms of the responsibility of the contractor. The contractor-subcontractor were held responsible for the receivables of the employees, and the employees were given the right to apply to contractor of their choice or to both. \u0000In this study; first of all, the concepts of contractor and subcontractor and the elements of the contractor-subcontractor relationship are included. Then, the collusion in the contractor-subcontractor relationship was examined. Eventually, joint liability situations in the contractor-subcontractor relationship are discussed.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134153397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Due to the accessoriness feature of the suretyship, the surety can plead against the creditor the defenses of the principal debtor arising from the principal debt relationship that can be pleaded by the principal debtor against the creditor. However, there are limits to these defenses and the surety may not plead all the defenses arising from the principal debt relationship. The defenses that arise from the principal debt relationship but cannot be pleaded by the surety are defenses that the surety cannot plead due to the nature of the surety’s undertaking; defenses that belong to the principal debtor, yet do not arise from the principal debt relationship; and finally, defenses that the surety is not allowed to plead by law. Defenses that the surety cannot plead by law are regulated under Art. 582/2 of Turkish Code of Obligations. According to this provision, the surety may not plead the mistake or incapacity to make a contract or time-barred obligations where he/she is aware of the situation at the time of the conclusion of the suretyship agreement. In situations stipulated under TCO Art. 582/2, the contract may not be categorized as suretyship due to lack of accessoriness. In this article, the scope of application of Art. 582/2 and the qualification of the contract concluded between the guarantor and the creditor shall be evaluated. Another important issue regarding the defenses that arise from the principal debt relationship but cannot be pleaded by the surety is whether the surety may plead the formative rights of the principal debtor that arise from the principal debt relationship against the creditor. The surety cannot invoke a formative right that belongs to principal debtor; however, the surety may refuse to pay under certain circumstances. This issue shall also be examined in this article. Briefly, in this article, first, general information about the suretyship agreement shall be given, then the defenses of the surety arising from the main debt relationship and the rules thereof shall be explained, and finally, the limits of the surety’s ability to apply to the defenses arising from the main debt relationship shall be examined.
{"title":"The Limits to the Surety’s Defenses that Arise from the Principal Debt Relationship","authors":"Günhan GÖNÜL KOŞAR","doi":"10.54049/taad.1183644","DOIUrl":"https://doi.org/10.54049/taad.1183644","url":null,"abstract":"Due to the accessoriness feature of the suretyship, the surety can plead against the creditor the defenses of the principal debtor arising from the principal debt relationship that can be pleaded by the principal debtor against the creditor. However, there are limits to these defenses and the surety may not plead all the defenses arising from the principal debt relationship. The defenses that arise from the principal debt relationship but cannot be pleaded by the surety are defenses that the surety cannot plead due to the nature of the surety’s undertaking; defenses that belong to the principal debtor, yet do not arise from the principal debt relationship; and finally, defenses that the surety is not allowed to plead by law. Defenses that the surety cannot plead by law are regulated under Art. 582/2 of Turkish Code of Obligations. According to this provision, the surety may not plead the mistake or incapacity to make a contract or time-barred obligations where he/she is aware of the situation at the time of the conclusion of the suretyship agreement. In situations stipulated under TCO Art. 582/2, the contract may not be categorized as suretyship due to lack of accessoriness. In this article, the scope of application of Art. 582/2 and the qualification of the contract concluded between the guarantor and the creditor shall be evaluated. Another important issue regarding the defenses that arise from the principal debt relationship but cannot be pleaded by the surety is whether the surety may plead the formative rights of the principal debtor that arise from the principal debt relationship against the creditor. The surety cannot invoke a formative right that belongs to principal debtor; however, the surety may refuse to pay under certain circumstances. This issue shall also be examined in this article. Briefly, in this article, first, general information about the suretyship agreement shall be given, then the defenses of the surety arising from the main debt relationship and the rules thereof shall be explained, and finally, the limits of the surety’s ability to apply to the defenses arising from the main debt relationship shall be examined.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131703454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Simple partnership, which constitutes the basic partnership model in Turkish law, emerges in a wide range from performing the simplest work to the execution of the most complex commercial activity. The provisions regarding simple partnership, which is regulated as a contractual debt relationship under the Turkish Code of Obligations No. 6098 (TCO), are general provisions for all partnership types and are applied as supplementary. In a simple partnership relationship, which does not have a legal personality, each partner is responsible for his own tortious act. On the other hand, in the context of Article 66 TCO which provides the liability of the employer, the liability of all partners may arise for the damage caused to third parties by the person employed for the purpose of carrying out a work belonging to the partnership. Article 66/III TCO greatly expands the scope of the duty of care for employers in enterprises and thus, aggravates the liability. This study evaluates, in the context of this type of liability, to whom the status of employer belongs in a simple partnership, with respect to various possibilities regarding the holder of management authority.
{"title":"Determination of the Employer Status within Simple Partnership in the Context of Tort Liability of the Partners","authors":"Ferhat Canbolat, Dila Okyar","doi":"10.54049/taad.1183597","DOIUrl":"https://doi.org/10.54049/taad.1183597","url":null,"abstract":"Simple partnership, which constitutes the basic partnership model in Turkish law, emerges in a wide range from performing the simplest work to the execution of the most complex commercial activity. The provisions regarding simple partnership, which is regulated as a contractual debt relationship under the Turkish Code of Obligations No. 6098 (TCO), are general provisions for all partnership types and are applied as supplementary. In a simple partnership relationship, which does not have a legal personality, each partner is responsible for his own tortious act. On the other hand, in the context of Article 66 TCO which provides the liability of the employer, the liability of all partners may arise for the damage caused to third parties by the person employed for the purpose of carrying out a work belonging to the partnership. Article 66/III TCO greatly expands the scope of the duty of care for employers in enterprises and thus, aggravates the liability. This study evaluates, in the context of this type of liability, to whom the status of employer belongs in a simple partnership, with respect to various possibilities regarding the holder of management authority.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132129626","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Occupational health and safety is considered a fundamental human right. In this regard, the Universal Declaration of Human Rights recognizes that everyone has the right to work in just and favorable conditions. Likewise, the 49th article of the Turkish Constitution includes a provision, indicating that the State is obliged to take the necessary measures in order to protect the employees. Therefore, if the right to work in healthy and safe conditions cannot be ensured in workplaces, then, the employees will naturally exercise their rights to refuse work. The right to refuse work can be found in Article 13 of the Turkish Occupational Health and Safety Law No. 6331. According to this provision, employees are able to exercise their right to refuse work if they are faced with a serious and imminent danger. Nevertheless, according to the legislation in force, it is almost impossible for the employees to exercise their right to refuse work. In this study, first of all, the concept, definition, scope and legal basis of the right to refuse work are explained. Then, the conditions necessary for exercising the right to refuse work are indicated. Finally, the difficulties to exercise the right to refuse work are examined, an evaluation is made and suggestions are brought on how to overcome the difficulties regarding the exercise to refuse work.
{"title":"The Right to Refuse Work","authors":"Gürcan Erol","doi":"10.54049/taad.1183586","DOIUrl":"https://doi.org/10.54049/taad.1183586","url":null,"abstract":"Occupational health and safety is considered a fundamental human right. In this regard, the Universal Declaration of Human Rights recognizes that everyone has the right to work in just and favorable conditions. Likewise, the 49th article of the Turkish Constitution includes a provision, indicating that the State is obliged to take the necessary measures in order to protect the employees. Therefore, if the right to work in healthy and safe conditions cannot be ensured in workplaces, then, the employees will naturally exercise their rights to refuse work. \u0000The right to refuse work can be found in Article 13 of the Turkish Occupational Health and Safety Law No. 6331. According to this provision, employees are able to exercise their right to refuse work if they are faced with a serious and imminent danger. Nevertheless, according to the legislation in force, it is almost impossible for the employees to exercise their right to refuse work. \u0000In this study, first of all, the concept, definition, scope and legal basis of the right to refuse work are explained. Then, the conditions necessary for exercising the right to refuse work are indicated. Finally, the difficulties to exercise the right to refuse work are examined, an evaluation is made and suggestions are brought on how to overcome the difficulties regarding the exercise to refuse work.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"131 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124687534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The most common way of economic concentration in practice, in the sense of grouping, is manifested in the form of konzern / group companies and corporate mergers. In mergers, companies that merge and become a single company lose both their legal and economic independence. In the konzern economic concentration model, while the affiliated companies maintain their legal independence, they lose their economic independence. This situation is incompatible with a legal system (traditional company law) based on the independence of companies in legal and economic terms. Seeing this incompatibility, the legal systems took action and regulated the company law accordingly. Regulations have been made in Swiss and Turkish Law, especially in Germany. The Turkish legislator put into effect the provisions in accordance with this new order for the first time between the Articles 195 - 209 of the TCC, addressed the issue decisively and thoroughly. While ‘konzern’ is the main legal term used in German law, instead of ‘konzern’, ‘group of companies and ‘group‘ has become a legal term used in Turkish law. While German konzern law considers single handed management as the determining element of konzern within the framework of paragraph AktG § 18, Turkish law of group companies, unlike German konzern law, has not accepted and regulated single handed management systems and as well peer-level konzerns. The Turkish group of companies is mainly explained according to the control principle. If it meets the conditions specified in TCC art. 195, pure holdings (as well as mixed holdings) whose main purpose is to participate in other businesses, will form a group of companies together with the company or companies under its control. ‘Law Of Group Companies” is as a top concept explained and put forward by the TCC articles 195 et seq provisions.
{"title":"Law of Group Companies “History and Terminology”","authors":"Sinan Misili","doi":"10.54049/taad.1183582","DOIUrl":"https://doi.org/10.54049/taad.1183582","url":null,"abstract":"The most common way of economic concentration in practice, in the sense of grouping, is manifested in the form of konzern / group companies and corporate mergers. In mergers, companies that merge and become a single company lose both their legal and economic independence. In the konzern economic concentration model, while the affiliated companies maintain their legal independence, they lose their economic independence. This situation is incompatible with a legal system (traditional company law) based on the independence of companies in legal and economic terms. Seeing this incompatibility, the legal systems took action and regulated the company law accordingly. Regulations have been made in Swiss and Turkish Law, especially in Germany. The Turkish legislator put into effect the provisions in accordance with this new order for the first time between the Articles 195 - 209 of the TCC, addressed the issue decisively and thoroughly. While ‘konzern’ is the main legal term used in German law, instead of ‘konzern’, ‘group of companies and ‘group‘ has become a legal term used in Turkish law. While German konzern law considers single handed management as the determining element of konzern within the framework of paragraph AktG § 18, Turkish law of group companies, unlike German konzern law, has not accepted and regulated single handed management systems and as well peer-level konzerns. The Turkish group of companies is mainly explained according to the control principle. If it meets the conditions specified in TCC art. 195, pure holdings (as well as mixed holdings) whose main purpose is to participate in other businesses, will form a group of companies together with the company or companies under its control. ‘Law Of Group Companies” is as a top concept explained and put forward by the TCC articles 195 et seq provisions.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125450996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Novation is regulated under articles 133 of the Turkish Code of Obligations. Nonetheless, as a rule, if a promissory note is issued for a debt arising from the basic debt relationship, the basic debt relationship is not considered to be renewed. In this case the basic debt relationship does not terminat and the creditor has competing requests. Therefore, if the credit arising from the promissory note cannot be obtained for any reason, the creditor may demand his/her credit based on the underlying basic debt relationship. The General Assembly of Civil Chambers on the Unification of Judgements of the Court of Cassation has a decision dated 25.12.2019, numbered E. 2019/1, K. 2019/8. At that dijudication, the maturity date in a time promissory note can not be considered in the context of the default in actions or execution proceedings based on the underlying basic debt relationship. The legal arguments established in this decision are considerably controversial. For example, the connection between the relationship arising from the issuance of the promissory note and the basic debt relationship is not considered enough in the decision. Besides the concept of procedural request was ignored in the decision. Procedural request is the demand which is directed to the court, which is a definite determination of a legal conclusion, that is the provision of a certain legal protection. Where the debt is due, the obligor falls in default by the notification of the obligee. But the concepts of maturity and default are used incorrectly. Because it is unclear whether the promissory note has been presented for payment, judgment is not adequately clear and needs clarification. In this study, various evaluations were made by approaching the legal issue in the decision from the points of view of civil procedure law, civil law and commercial law. In addition, various evaluations were made regarding the institutions and concepts discussed in the decision.
{"title":"Evaluation of the Default on Promissory Note on which the Statute of Limitation has ended under the Perspective of the General Assembly of Civil Chambers’ Decision","authors":"Sedat Kaya","doi":"10.54049/taad.1183671","DOIUrl":"https://doi.org/10.54049/taad.1183671","url":null,"abstract":"Novation is regulated under articles 133 of the Turkish Code of Obligations. Nonetheless, as a rule, if a promissory note is issued for a debt arising from the basic debt relationship, the basic debt relationship is not considered to be renewed. In this case the basic debt relationship does not terminat and the creditor has competing requests. Therefore, if the credit arising from the promissory note cannot be obtained for any reason, the creditor may demand his/her credit based on the underlying basic debt relationship. The General Assembly of Civil Chambers on the Unification of Judgements of the Court of Cassation has a decision dated 25.12.2019, numbered E. 2019/1, K. 2019/8. At that dijudication, the maturity date in a time promissory note can not be considered in the context of the default in actions or execution proceedings based on the underlying basic debt relationship. The legal arguments established in this decision are considerably controversial. For example, the connection between the relationship arising from the issuance of the promissory note and the basic debt relationship is not considered enough in the decision. Besides the concept of procedural request was ignored in the decision. Procedural request is the demand which is directed to the court, which is a definite determination of a legal conclusion, that is the provision of a certain legal protection. Where the debt is due, the obligor falls in default by the notification of the obligee. But the concepts of maturity and default are used incorrectly. Because it is unclear whether the promissory note has been presented for payment, judgment is not adequately clear and needs clarification. In this study, various evaluations were made by approaching the legal issue in the decision from the points of view of civil procedure law, civil law and commercial law. In addition, various evaluations were made regarding the institutions and concepts discussed in the decision.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116998927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Partial lawsuit, which is one of the types of lawsuits organized in private law proceedings, is the filing of a lawsuit by demanding a certain part of the entire claim or right arising from the same legal relationship. With this type of lawsuit, which existed at the time of the Code of Civil Procedure (No. 1086) but was explicitly regulated for the first time with Article 109 of the Code of Civil Procedure (No. 6100), the plaintiffs indirectly establish the determination of the second lawsuit with the judgment they receive for the part that is the subject of the first lawsuit. In lawsuits filed in private law in this way, the plaintiffs have the opportunity to increase the results of their claims, without the need to open a second lawsuit, with the possibility of correction if they wish. Although such a lawsuit is not explicitly included in Article 2 of the Code of Administrative Procedure, the amount increase regulation in full remedy lawsuits, which was put into effect with the amendment made in Code of Administrative Procedure Article 16/4 with the Law No. 6459, it is possible to sue a part of the damage in administrative jurisdiction and then to increase the amount.
{"title":"Possibility of Partial Lawsuit After The Amendment of Law No. 6459 in Administrative Jurisdiction","authors":"Halil Yolal","doi":"10.54049/taad.1183549","DOIUrl":"https://doi.org/10.54049/taad.1183549","url":null,"abstract":"Partial lawsuit, which is one of the types of lawsuits organized in private law proceedings, is the filing of a lawsuit by demanding a certain part of the entire claim or right arising from the same legal relationship. With this type of lawsuit, which existed at the time of the Code of Civil Procedure (No. 1086) but was explicitly regulated for the first time with Article 109 of the Code of Civil Procedure (No. 6100), the plaintiffs indirectly establish the determination of the second lawsuit with the judgment they receive for the part that is the subject of the first lawsuit. \u0000In lawsuits filed in private law in this way, the plaintiffs have the opportunity to increase the results of their claims, without the need to open a second lawsuit, with the possibility of correction if they wish. Although such a lawsuit is not explicitly included in Article 2 of the Code of Administrative Procedure, the amount increase regulation in full remedy lawsuits, which was put into effect with the amendment made in Code of Administrative Procedure Article 16/4 with the Law No. 6459, it is possible to sue a part of the damage in administrative jurisdiction and then to increase the amount.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115259488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Article 117/I of the TCO (Turkish Code of Obligations) clearly regulates that the debtor of a debt due will fall into default with the notice of the creditor. The notice, which constitutes one of the general conditions of the debtor’s default and the determination of the grace period, which constitutes the prerequisite for the exercise of alternative rights in bilateral contracts are different institutions. While the notice is important in terms of determining the exact time of performance; the determination of the grace period, without specifying a new time of performance, almost constitutes a prerequisite for the exercise of alternative rights within the framework of article 123 of the TCO. While the creditor, who does not want to enjoy the alternative rights in a bilateral contract, has the opportunity to put the debtor in default by only giving a notice, in which case, his request will be limited to the specific performance and the compensation for delay in performance, and will be deprived of the alternative rights granted to him. In that case, both declarations will have differences in terms of parties, content, form, time and consequences.
{"title":"Concepts of Notice and Grace Period in Default of the Debtor","authors":"Derya Ateş","doi":"10.54049/taad.1183667","DOIUrl":"https://doi.org/10.54049/taad.1183667","url":null,"abstract":"Article 117/I of the TCO (Turkish Code of Obligations) clearly regulates that the debtor of a debt due will fall into default with the notice of the creditor. The notice, which constitutes one of the general conditions of the debtor’s default and the determination of the grace period, which constitutes the prerequisite for the exercise of alternative rights in bilateral contracts are different institutions. While the notice is important in terms of determining the exact time of performance; the determination of the grace period, without specifying a new time of performance, almost constitutes a prerequisite for the exercise of alternative rights within the framework of article 123 of the TCO. While the creditor, who does not want to enjoy the alternative rights in a bilateral contract, has the opportunity to put the debtor in default by only giving a notice, in which case, his request will be limited to the specific performance and the compensation for delay in performance, and will be deprived of the alternative rights granted to him. In that case, both declarations will have differences in terms of parties, content, form, time and consequences.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132325612","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article deals with the relationship between legislation and jurisprudence based on the claims in Savigny’s “Of the Vocation of Our Age for Legislation and Jurisprudence”. The aforementioned work has been included in the discussion of when, how and by whom a civil code should be made in Germany, with some determinations regarding the nature of law. In these determinations, it is underlined that in addition to the historical nature of law, there should be certain development of legal consciousness in order to make a code. The emphasis of the school’s arguments on the historical and local characteristics of law has resulted in the failure to pay enough attention to the function of jurisprudence and its determinations about the non-local characteristics of law. In this direction, the article aims to draw attention to the fact that the claims in the aforementioned work have a value beyond its age, and finally to discuss the position of legal science and the lawyers against the legislature. In this context, Savigny’s arguments that bring the legislation and jurisprudence against each other are brought to the fore, not universal-historical dichotomy. Afterward, the position of jurisprudence on the creation of law was discussed. It has been pointed out that a voluntarist conception is untenable for jurisprudence.
{"title":"Of the Ageless Vocation for Legislation and Jurisprudence","authors":"O. V. İşsevenler","doi":"10.54049/taad.1183563","DOIUrl":"https://doi.org/10.54049/taad.1183563","url":null,"abstract":"The article deals with the relationship between legislation and jurisprudence based on the claims in Savigny’s “Of the Vocation of Our Age for Legislation and Jurisprudence”. The aforementioned work has been included in the discussion of when, how and by whom a civil code should be made in Germany, with some determinations regarding the nature of law. In these determinations, it is underlined that in addition to the historical nature of law, there should be certain development of legal consciousness in order to make a code. The emphasis of the school’s arguments on the historical and local characteristics of law has resulted in the failure to pay enough attention to the function of jurisprudence and its determinations about the non-local characteristics of law. In this direction, the article aims to draw attention to the fact that the claims in the aforementioned work have a value beyond its age, and finally to discuss the position of legal science and the lawyers against the legislature. In this context, Savigny’s arguments that bring the legislation and jurisprudence against each other are brought to the fore, not universal-historical dichotomy. Afterward, the position of jurisprudence on the creation of law was discussed. It has been pointed out that a voluntarist conception is untenable for jurisprudence.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133019156","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Following the amendment of the 51st article of the Turkish Code of the Administrative Judicial Procedure No. 2577 by the Code No. 6545, the question of whether it is possible to file an appeal for the sake of law against the decisions of the Council of State as a court of first instance arose, and two opposing viewpoints were advanced. This study attempted to answer this question using the interpretation methods in legal rules. The textual and teleological interpretation of the rule regulating the subject demonstrates that an appeal for the sake of law can be made in opposition to such judicial decisions. The systematic interpretation method cannot be used to reach a conclusion on this subject. On the other hand, using the historical interpretation method, some findings can be reached that support the view that no appeal for the sake of law can be made against decisions provided by the Council of State as a court of first instance and which are finalized without the appeal examination. It is not possible to use the historical interpretation method as a basis by ignoring other interpretation methods in this regard. Because in circumstances where the textual interpretation method can be used to interpret a norm, the other interpretation methods cannot be applied and the historical interpretation method is the last interpretation method. Accordingly, it should be accepted that an appeal for the sake of law can be filed against the decisions issued by the Council of State as a court of first instance and that are finalized without going through the appeal examination.
{"title":"The Question of Whether it is Possible to Appeal for the Sake of Law Against the Decision of the Council of State","authors":"Tahir Muratoğlu","doi":"10.54049/taad.1183559","DOIUrl":"https://doi.org/10.54049/taad.1183559","url":null,"abstract":"Following the amendment of the 51st article of the Turkish Code of the Administrative Judicial Procedure No. 2577 by the Code No. 6545, the question of whether it is possible to file an appeal for the sake of law against the decisions of the Council of State as a court of first instance arose, and two opposing viewpoints were advanced. This study attempted to answer this question using the interpretation methods in legal rules. The textual and teleological interpretation of the rule regulating the subject demonstrates that an appeal for the sake of law can be made in opposition to such judicial decisions. The systematic interpretation method cannot be used to reach a conclusion on this subject. On the other hand, using the historical interpretation method, some findings can be reached that support the view that no appeal for the sake of law can be made against decisions provided by the Council of State as a court of first instance and which are finalized without the appeal examination. It is not possible to use the historical interpretation method as a basis by ignoring other interpretation methods in this regard. Because in circumstances where the textual interpretation method can be used to interpret a norm, the other interpretation methods cannot be applied and the historical interpretation method is the last interpretation method. Accordingly, it should be accepted that an appeal for the sake of law can be filed against the decisions issued by the Council of State as a court of first instance and that are finalized without going through the appeal examination.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116562143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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