In private international law disputes, Turkish courts are obliged to apply ex officio the conflict of laws rules in the Code on Private International Law and Procedural Law no.5718 (CPIL) and other Codes and the foreign law determined in accordance with these rules (Art.2(1) of CPIL). Turkish courts can resort to various means, especially the assistance of the parties, in order to obtain information on the content of foreign law. In Turkish law, it is expressly prohibited to resort to an expert in legal matters pursuant to Article 266 of the Code of Civil Procedure no. 6100 and Article 3 of the Expertise Law no. 6754. In the face of the acceptance of foreign law as a “law” in Turkish private international law system, the question of whether it is possible to resort to an expert witness, which is one of the means frequently used by Turkish courts to obtain the content of foreign law, has arisen. In this study, firstly, as a result of the analysis of Turkish doctrine and court practice, it was concluded that obtaining information about the content of foreign law does not fall within the scope of the prohibition of resorting to an expert witness in legal matters. Then, in addition to the qualifications sought in the Codes, the other qualificaitons of expert witness, who is been resorted to obtain information on foreign law, is examined in the light of decisions of Turkish Court of Cassation. Finally, the limits and scope of the expert examination regarding the determination and obtaining of the content of foreign law are discussed. In this context, the conditions that the report of expert witness cannot be related to Turkish legislation and in violation of Art. 2(1) of CPIL and the report cannot include legal assessment, which are stipulated by the Court, are examined in detail.
{"title":"The Role of Expert Witness in Obtaining Information on the Content of Foreign Law in Private International Law Cases","authors":"İlyas Arslan","doi":"10.54049/taad.1140168","DOIUrl":"https://doi.org/10.54049/taad.1140168","url":null,"abstract":"In private international law disputes, Turkish courts are obliged to apply ex officio the conflict of laws rules in the Code on Private International Law and Procedural Law no.5718 (CPIL) and other Codes and the foreign law determined in accordance with these rules (Art.2(1) of CPIL). Turkish courts can resort to various means, especially the assistance of the parties, in order to obtain information on the content of foreign law. In Turkish law, it is expressly prohibited to resort to an expert in legal matters pursuant to Article 266 of the Code of Civil Procedure no. 6100 and Article 3 of the Expertise Law no. 6754. In the face of the acceptance of foreign law as a “law” in Turkish private international law system, the question of whether it is possible to resort to an expert witness, which is one of the means frequently used by Turkish courts to obtain the content of foreign law, has arisen. In this study, firstly, as a result of the analysis of Turkish doctrine and court practice, it was concluded that obtaining information about the content of foreign law does not fall within the scope of the prohibition of resorting to an expert witness in legal matters. Then, in addition to the qualifications sought in the Codes, the other qualificaitons of expert witness, who is been resorted to obtain information on foreign law, is examined in the light of decisions of Turkish Court of Cassation. Finally, the limits and scope of the expert examination regarding the determination and obtaining of the content of foreign law are discussed. In this context, the conditions that the report of expert witness cannot be related to Turkish legislation and in violation of Art. 2(1) of CPIL and the report cannot include legal assessment, which are stipulated by the Court, are examined in detail.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"478 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116689462","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 legal status of cryptocurrencies is not yet clear. There is a need for regulation in Turkish law in this regard. The Swiss example of cryptocurrencies is discussed in this study. The regulations, which came into force in Swiss law in 2021, are intended to create a legal investment environment that includes various systems for crypto-assets. In this sense, many institutions of commercial law, substantive law as well as debt collection and bankruptcy law were used. One of the regulations that serves to create the investment environment prepared for cryptocurrencies is Article 242a of the Swiss Code of Debt Enforcement And Bankruptcy. In the Swiss Code of Debt Enforcement And Bankruptcy, the status of crypto currencies is not regulated separately in each ruling. It should therefore be noted that the legislature does not use a casuistic method when regulating crypto currencies. The focus is on the bankruptcy resolution dimension of the relationship between intermediaries and investors, which is an important element for safe investments in Swiss debt enforcement and bankruptcy law. Article 242a of the Swiss Code of Debt Enforcement And Bankruptcy deals with the segregation of crypto currencies in the bankruptcy liquidation of companies. Several different conclusions can be drawn from Article 242a. For example, except as provided in Article 242a, the law, like all property, subjects cryptocurrencies to bankruptcy. So cryptocurrencies are considered attachable. This article discusses the latest Swiss legal developments on the relationship between crypto currencies in bankruptcy liquidation.
{"title":"The Status of Crypto Assets in Codes of Debt Enforcement and Bankruptcy: The Swiss Example","authors":"Ömer Çon","doi":"10.54049/taad.1140162","DOIUrl":"https://doi.org/10.54049/taad.1140162","url":null,"abstract":"The legal status of cryptocurrencies is not yet clear. There is a need for regulation in Turkish law in this regard. The Swiss example of cryptocurrencies is discussed in this study. The regulations, which came into force in Swiss law in 2021, are intended to create a legal investment environment that includes various systems for crypto-assets. In this sense, many institutions of commercial law, substantive law as well as debt collection and bankruptcy law were used. One of the regulations that serves to create the investment environment prepared for cryptocurrencies is Article 242a of the Swiss Code of Debt Enforcement And Bankruptcy. \u0000In the Swiss Code of Debt Enforcement And Bankruptcy, the status of crypto currencies is not regulated separately in each ruling. It should therefore be noted that the legislature does not use a casuistic method when regulating crypto currencies. The focus is on the bankruptcy resolution dimension of the relationship between intermediaries and investors, which is an important element for safe investments in Swiss debt enforcement and bankruptcy law. Article 242a of the Swiss Code of Debt Enforcement And Bankruptcy deals with the segregation of crypto currencies in the bankruptcy liquidation of companies. Several different conclusions can be drawn from Article 242a. For example, except as provided in Article 242a, the law, like all property, subjects cryptocurrencies to bankruptcy. So cryptocurrencies are considered attachable. This article discusses the latest Swiss legal developments on the relationship between crypto currencies in bankruptcy liquidation.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117298687","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 topic of this article is to examine the constituent power attribute of GNAT which accepted the Law of the Fundamental Organization 1921. In the article, primarily, the political and sociological basis on which the new state will be built and which was prepared by the process we named as the system of problems were revealed, and then, the notion of constituent power was discussed in the context of constitutional law. The corruption of the Ottoman Empire was examined in terms of three powers that lost their effectiveness. And the foundation of the State of Turkey was examined along with the consecutive processes of the initial process of non-constitutionalization experienced after the foundation of GNAT and the determination of the regime and the form of the state within the scope of the acceptance of the Law of the Fundamental Organization 1921. The historical value of the process that is discussed in the article is the evolution of the title of “savior” which was attributed to GNAT at the beginning of its duty into the title of “founder” within the conditions of the time. The result we reached in the teaching of constitutional law with the data we obtained from this historical event is the determination that GNAT, which accepted the Law of the Fundamental Organization 1921 and has founded the State of Turkey with this act, functions with the attribute of primary constituent power renovating the foundation of an existing state.
{"title":"The Founder Title of GNAT in the Context of the Building of the Law of the Fundamental Organization 1921","authors":"E. Gezer","doi":"10.54049/taad.1140213","DOIUrl":"https://doi.org/10.54049/taad.1140213","url":null,"abstract":"The topic of this article is to examine the constituent power attribute of GNAT which accepted the Law of the Fundamental Organization 1921. In the article, primarily, the political and sociological basis on which the new state will be built and which was prepared by the process we named as the system of problems were revealed, and then, the notion of constituent power was discussed in the context of constitutional law. The corruption of the Ottoman Empire was examined in terms of three powers that lost their effectiveness. And the foundation of the State of Turkey was examined along with the consecutive processes of the initial process of non-constitutionalization experienced after the foundation of GNAT and the determination of the regime and the form of the state within the scope of the acceptance of the Law of the Fundamental Organization 1921. The historical value of the process that is discussed in the article is the evolution of the title of “savior” which was attributed to GNAT at the beginning of its duty into the title of “founder” within the conditions of the time. The result we reached in the teaching of constitutional law with the data we obtained from this historical event is the determination that GNAT, which accepted the Law of the Fundamental Organization 1921 and has founded the State of Turkey with this act, functions with the attribute of primary constituent power renovating the foundation of an existing state.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124290305","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}
On the date of April 21st, 2021 The European Commission, which we will refer to as the Proposal for a Regulation on Artificial Intelligence or Proposal for a Regulation in short, released a text (Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act) and Amending Certain Union Legislative Acts). This text can be considered as the first concrete step in making legal regulations in the field of artificial intelligence. When this regulation comes into effect, it will closely affect companies, enterprises, customers and governments operating in the field of artificial intelligence. As in the General Data Protection Regulation (General Data Protection Regulation-Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016) in force in the European Union, with the entry into force of the Regulation on Artificial Intelligence, it is expected to be a pioneer in setting global standards. In this article, the criticisms and evaluations put forward regarding the main issues brought by the Proposal for Regulation on Artificial Intelligence are tried to be discussed. By all means, there is a need for a detailed and individual examination of all the issues mentioned in the Proposal for a Regulation.
{"title":"A General Look at the Proposal for a Regulation on Artificial Intelligence of the European Commission","authors":"Armağan Ebru BOZKURT YÜKSEL","doi":"10.54049/taad.1139330","DOIUrl":"https://doi.org/10.54049/taad.1139330","url":null,"abstract":"On the date of April 21st, 2021 The European Commission, which we will refer to as the Proposal for a Regulation on Artificial Intelligence or Proposal for a Regulation in short, released a text (Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act) and Amending Certain Union Legislative Acts). This text can be considered as the first concrete step in making legal regulations in the field of artificial intelligence. When this regulation comes into effect, it will closely affect companies, enterprises, customers and governments operating in the field of artificial intelligence. As in the General Data Protection Regulation (General Data Protection Regulation-Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016) in force in the European Union, with the entry into force of the Regulation on Artificial Intelligence, it is expected to be a pioneer in setting global standards. In this article, the criticisms and evaluations put forward regarding the main issues brought by the Proposal for Regulation on Artificial Intelligence are tried to be discussed. By all means, there is a need for a detailed and individual examination of all the issues mentioned in the Proposal for a Regulation.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"163 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121746142","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}
In this study, doctrinal views and Supreme Court Decisions regarding the transfer of share of capital in the limited liability company has been examined. One of the most important changes that took place in a limited company is the regulations regarding the transfer of the capital share. In a limited company, share of capital is an asset value and a legally transferable right. One of the transition states of the capital share is the transfer of the share. After the limited company is established, it may not continue with the same partners. In this case, the transfer of shares in a limited company is made between the partners and third parties within the framework of the provisions of the TCC. The form of transfer of share of capital, the preparation of the share of capital transfer agreement, the notary approval of the signatures of the parties, the notification of the transfer of the share to the company, the approval of the transfer of the share by the general assembly, the registration of the transfer of the share in the share book, registration and announcement in the trade registry. In this study, the transfer of the registered capital share is examined, the provisions regarding the inheritance, the property regime between the spouses or the cases of passing the original capital stock share through execution are not examined.
{"title":"The Transfer of Registered Capital Shares in the Limited Company in the Light of Supreme Court Decisions","authors":"Murat Türe","doi":"10.54049/taad.1139373","DOIUrl":"https://doi.org/10.54049/taad.1139373","url":null,"abstract":"In this study, doctrinal views and Supreme Court Decisions regarding the transfer of share of capital in the limited liability company has been examined. One of the most important changes that took place in a limited company is the regulations regarding the transfer of the capital share. In a limited company, share of capital is an asset value and a legally transferable right. One of the transition states of the capital share is the transfer of the share. After the limited company is established, it may not continue with the same partners. In this case, the transfer of shares in a limited company is made between the partners and third parties within the framework of the provisions of the TCC. The form of transfer of share of capital, the preparation of the share of capital transfer agreement, the notary approval of the signatures of the parties, the notification of the transfer of the share to the company, the approval of the transfer of the share by the general assembly, the registration of the transfer of the share in the share book, registration and announcement in the trade registry. In this study, the transfer of the registered capital share is examined, the provisions regarding the inheritance, the property regime between the spouses or the cases of passing the original capital stock share through execution are not examined.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132345945","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}
In our country, trademarks, patent-utility models, designs and geographical indications protected by four separate Statutory Decrees (KHK) adopted in 1995 have been brought together under the Industrial Property Law No. 6769. Therefore, the adoption of the Industrial Property Law (SMK) numbered 6769, which entered into force on 10.01.2017, is similar to the fact that 1995 is seen as a milestone in the doctrine due to the acceptance of the customs union with the European Union and being a party to the World Trade Organization (WTO)/TRIPS in our country. It can be said that it should be seen as a milestone in the field. It is a very important issue that the regulations paralleling the European Union regulations regarding the use of the trademark are included in our legal system. The trademark owner, who registers the chosen trademark in the trademark registry and uses the trademark under the conditions stipulated in the Law, will be able to protect his trademark against third parties. In the Industrial Property Law, the way this use should be is explained and it is emphasized that it should be used seriously within the borders of Turkey in the class of goods or services for which the trademark is registered. In order to encourage the real use of the trademark and to prevent the trademarks from occupying an unnecessary place in the registry, the use of the trademark has been made mandatory by the law. Upon the request of the relevant persons, TÜRKPATENT may decide to cancel the trademarks that are not used by their owner within five years from the date of registration in the registry or whose use has been suspended for five years without a justifiable reason. Principles regarding the use of the trademark, Industrial Property Law No. 6769 9/1. According to the provision of the article, “A trademark that is not used seriously in Turkey by the trademark owner in terms of the goods or services for which it has been registered without a justifiable reason within five years from the date of registration or whose use has been interrupted for five years shall be decided to be cancelled”. Accordingly, within five years from the date of registration, if the trademark cannot be used seriously by the trademark owner in Turkey without a justifiable reason in terms of the goods or services for which it is registered, or if the usage is interrupted for five years, the trademark shall be cancelled. Therefore, in this sense, in order not to decide on the cancellation of the trademark, the trademark must be used seriously in Turkey by the trademark owner in accordance with its basic function in terms of the goods or services registered in the registry. Using the trademark with different elements without changing its distinctive character, using it only in the goods or packaging for export purposes, and using it with the permission of the trademark owner are also included in the SMK. It is accepted to use the trademark within the meaning of paragraphs 9/2 and 3. It
{"title":"Obligation to use the Brand and Legal Consequences of Non-Use","authors":"Yılmaz Yördem, Emrah Bi̇çi̇mli̇","doi":"10.54049/taad.1139381","DOIUrl":"https://doi.org/10.54049/taad.1139381","url":null,"abstract":"In our country, trademarks, patent-utility models, designs and geographical indications protected by four separate Statutory Decrees (KHK) adopted in 1995 have been brought together under the Industrial Property Law No. 6769. Therefore, the adoption of the Industrial Property Law (SMK) numbered 6769, which entered into force on 10.01.2017, is similar to the fact that 1995 is seen as a milestone in the doctrine due to the acceptance of the customs union with the European Union and being a party to the World Trade Organization (WTO)/TRIPS in our country. It can be said that it should be seen as a milestone in the field. \u0000It is a very important issue that the regulations paralleling the European Union regulations regarding the use of the trademark are included in our legal system. The trademark owner, who registers the chosen trademark in the trademark registry and uses the trademark under the conditions stipulated in the Law, will be able to protect his trademark against third parties. In the Industrial Property Law, the way this use should be is explained and it is emphasized that it should be used seriously within the borders of Turkey in the class of goods or services for which the trademark is registered. In order to encourage the real use of the trademark and to prevent the trademarks from occupying an unnecessary place in the registry, the use of the trademark has been made mandatory by the law. Upon the request of the relevant persons, TÜRKPATENT may decide to cancel the trademarks that are not used by their owner within five years from the date of registration in the registry or whose use has been suspended for five years without a justifiable reason. \u0000Principles regarding the use of the trademark, Industrial Property Law No. 6769 9/1. According to the provision of the article, “A trademark that is not used seriously in Turkey by the trademark owner in terms of the goods or services for which it has been registered without a justifiable reason within five years from the date of registration or whose use has been interrupted for five years shall be decided to be cancelled”. Accordingly, within five years from the date of registration, if the trademark cannot be used seriously by the trademark owner in Turkey without a justifiable reason in terms of the goods or services for which it is registered, or if the usage is interrupted for five years, the trademark shall be cancelled. Therefore, in this sense, in order not to decide on the cancellation of the trademark, the trademark must be used seriously in Turkey by the trademark owner in accordance with its basic function in terms of the goods or services registered in the registry. \u0000Using the trademark with different elements without changing its distinctive character, using it only in the goods or packaging for export purposes, and using it with the permission of the trademark owner are also included in the SMK. It is accepted to use the trademark within the meaning of paragraphs 9/2 and 3. It","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"55 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120815308","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 Federal German Constitutional Court has a leading role in EU Law with its jurisprudence. Solange I” decision of 1974, “Solange II” decision of 1986, “Maastricht” decision of 1993, “Lisbon” decision of 2009, “Honeywell” decision of 2010 and “OMT” decision of 2014 are included in the EU legal literature as landmark decisions regarding the relationship between EU law and national law. The article aims to shed light on the development of case-law of the constitutional court in the context of ultra-vires control and constitutional identity control of EU primary law and to evaluate the relations of other constitutional organs (Federal Assembly and Federal Government) with the EU Court.
{"title":"Federal German Constitutional Court Jurisprudence and EU Law","authors":"Ayşe Füsun Arsava","doi":"10.54049/taad.1139315","DOIUrl":"https://doi.org/10.54049/taad.1139315","url":null,"abstract":"The Federal German Constitutional Court has a leading role in EU Law with its jurisprudence. Solange I” decision of 1974, “Solange II” decision of 1986, “Maastricht” decision of 1993, “Lisbon” decision of 2009, “Honeywell” decision of 2010 and “OMT” decision of 2014 are included in the EU legal literature as landmark decisions regarding the relationship between EU law and national law. The article aims to shed light on the development of case-law of the constitutional court in the context of ultra-vires control and constitutional identity control of EU primary law and to evaluate the relations of other constitutional organs (Federal Assembly and Federal Government) with the EU Court.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128258985","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 principle of pacta sunt servanda, according to which every treaty in force is binding upon the parties to it and must be performed in good faith aims at maintaining stability in international legal order. However, in cases where important change of circumstances occurs with regard to those existing at the time of the conclusion of a treaty, the balance between the parties may be disturbed and the aim and the purpose of the treaty may become meaningless. Therefore, if the principle of pacta sunt servanda is interpreted as containing no exception, States would be reluctant to establish contractual relationships that could not be terminated even in very different conditions and circumstances. This would certainly cause instability in international relations. International law aims at establishing the balance between stability and change by the principle traditionally referred to as rebus sic stantibus which is based on the idea that treaties cannot be considered as being independent from the conditions that paved the way for their conclusion. According to this principle, in some cases where a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, these latter may terminate the treaty or withdraw from it. Although being a settled principle of positive international law, the meaning of rebus sic stantibus generates intensive debate among States and national and international judicial instances. Article 62 of the 1969 Vienna Convention on the Law of Treaties and the international jurisprudence interpret the principle objectively in light of the “shared expectations” of the parties to international treaties. Whereas States seem to invoke the principle based on their subjective “vital interests”. This article discusses how the principle needs to be interpreted to achieve its aim without being discretionary used by States.
{"title":"Change, Stability and Stability by Change in the Law of Treaties: Rebus Sic Stantibus","authors":"Ceren Zeynep Pirim","doi":"10.54049/taad.1139345","DOIUrl":"https://doi.org/10.54049/taad.1139345","url":null,"abstract":"The principle of pacta sunt servanda, according to which every treaty in force is binding upon the parties to it and must be performed in good faith aims at maintaining stability in international legal order. However, in cases where important change of circumstances occurs with regard to those existing at the time of the conclusion of a treaty, the balance between the parties may be disturbed and the aim and the purpose of the treaty may become meaningless. Therefore, if the principle of pacta sunt servanda is interpreted as containing no exception, States would be reluctant to establish contractual relationships that could not be terminated even in very different conditions and circumstances. This would certainly cause instability in international relations. \u0000International law aims at establishing the balance between stability and change by the principle traditionally referred to as rebus sic stantibus which is based on the idea that treaties cannot be considered as being independent from the conditions that paved the way for their conclusion. According to this principle, in some cases where a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, these latter may terminate the treaty or withdraw from it. \u0000Although being a settled principle of positive international law, the meaning of rebus sic stantibus generates intensive debate among States and national and international judicial instances. Article 62 of the 1969 Vienna Convention on the Law of Treaties and the international jurisprudence interpret the principle objectively in light of the “shared expectations” of the parties to international treaties. Whereas States seem to invoke the principle based on their subjective “vital interests”. This article discusses how the principle needs to be interpreted to achieve its aim without being discretionary used by States.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129782473","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}
According to the traditional form of life in pre-Enlightenment societies, human rights was less valuable than the interests of society. Therefore, the individual could only be an object for the construction of the higher values of the society. By breaking down all the bonds of traditional society, modernism also clarified the position of man before society or clan: the individual. From now on the individual, as being the social values itself, could has rights and freedoms before the law. In accordance with the traditional classification of classical rights, patient rights have also taken its place in the range of values. The individual, who is the subject of law, has become a value itself with modernism as a social being whose roots go back to the state of nature. With its historicalness extending from the state of nature to the rules of law, the individual has also become the source of legitimacy for a series of rights inherent in human beings. This legitimacy has also become the subject of rights like human life, environment and health as well as the moral values. In this context, patient rights are one of the legitimate, actual and natural rights of the modern individual. Patients’ rights don’t mean an abstract order of objects but the set of rights which embodied with a set of concrete, objective, protective improving legal rules. On the other hand, it should be considered as an obligation to analyze new approaches related to patient rights within the scope of modern legal rules.
{"title":"Assessment on Patient Right","authors":"Hayrettin Kurt","doi":"10.54049/taad.1139385","DOIUrl":"https://doi.org/10.54049/taad.1139385","url":null,"abstract":"According to the traditional form of life in pre-Enlightenment societies, human rights was less valuable than the interests of society. Therefore, the individual could only be an object for the construction of the higher values of the society. By breaking down all the bonds of traditional society, modernism also clarified the position of man before society or clan: the individual. From now on the individual, as being the social values itself, could has rights and freedoms before the law. In accordance with the traditional classification of classical rights, patient rights have also taken its place in the range of values. The individual, who is the subject of law, has become a value itself with modernism as a social being whose roots go back to the state of nature. With its historicalness extending from the state of nature to the rules of law, the individual has also become the source of legitimacy for a series of rights inherent in human beings. This legitimacy has also become the subject of rights like human life, environment and health as well as the moral values. In this context, patient rights are one of the legitimate, actual and natural rights of the modern individual. Patients’ rights don’t mean an abstract order of objects but the set of rights which embodied with a set of concrete, objective, protective improving legal rules. On the other hand, it should be considered as an obligation to analyze new approaches related to patient rights within the scope of modern legal rules.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134466857","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}
Building is the structure or plants on the immovable to be permanent. For this reason, it is a constituent part. The previous building or plant owner can have no longer a property right on the building. The real right on the immovable also includes the building. However, both the right owner and the immovable owner can assert some claims due to the building. For example, the party who has the right to claim on the property may file a declaratory judgment action for the building or returning the unjust enrichment. The owner of the immovable may claim some rights such as compensation, demolition, transfer of ownership. In this respect, it is a legal institution that is frequently in practice. Therefore, the richness and diversity of the disputes has been effective in the choice of the subject. Moreover, the judgments of the Court of Appeal that are open to criticism were also analysed. The Court states that the declaratory judgment action for the building is exceptional, but can be filed in some cases, otherwise it should be rejected due to the absence of the legal benefit requirement is not correct.
{"title":"Building in the Light of the Current Cases of the Judiciary","authors":"Mehmet Akçaal","doi":"10.54049/taad.1139352","DOIUrl":"https://doi.org/10.54049/taad.1139352","url":null,"abstract":"Building is the structure or plants on the immovable to be permanent. For this reason, it is a constituent part. The previous building or plant owner can have no longer a property right on the building. The real right on the immovable also includes the building. However, both the right owner and the immovable owner can assert some claims due to the building. For example, the party who has the right to claim on the property may file a declaratory judgment action for the building or returning the unjust enrichment. The owner of the immovable may claim some rights such as compensation, demolition, transfer of ownership. In this respect, it is a legal institution that is frequently in practice. Therefore, the richness and diversity of the disputes has been effective in the choice of the subject. Moreover, the judgments of the Court of Appeal that are open to criticism were also analysed. The Court states that the declaratory judgment action for the building is exceptional, but can be filed in some cases, otherwise it should be rejected due to the absence of the legal benefit requirement is not correct.","PeriodicalId":106262,"journal":{"name":"Türkiye Adalet Akademisi Dergisi","volume":"239 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116390486","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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