Presentation on theme: "TurkIsh prIvate LAW-cIVIL LAW"— Presentation transcript:
1 TurkIsh prIvate LAW-cIVIL LAW Dr. Özlem Döğerlioğlu IŞIKSUNGURYaşar UniversityFaculty of Economics andAdministrative ScienceIntroduction to Law – Lecture NotesDr. Özlem Döğerlioğlu IŞIKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gözübüyük,Ş.Hukuka Giriş 2010
2 CIVIL LAW Legal rules related to PersonalityMarriage, family relationsPropertySuccessionobligationsThe fundamental source of Turkish civil law is CIVIL CODEFirst Turkish Civil Code was adopted from Switzerland in 1926In 2002, new version of Civil Code was enacted
3 TurkIsh cIVIL CODE Consist of a Preliminary Chapter and Four Books Book One---- Law of Persons (Article 8-117)Book Two----- Family Law (Article )Book Three----- Law of Succession (Article )Book Four Law of Property (Article )
4 General prIncIples of TURKISH prIVATE law Preliminary Chapter of Turkish Civil CodeArticle 1-7Provisions regulated in “Preliminary Chapter” are the general principles which are applicable to all of the branches of private law.
5 Preliminary Chapter of Turkish Civil Code Article 1 of Civil CodeA-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 JudgeWhere provisions are inapplicable,the judge should decide according toa- the existing customary lawb- in default there of, the rules he would lay down,if he himself had to act as legislator.
6 Preliminary Chapter of Turkish Civil Code Article 2 of Civil CodeConduct in good faith“Every person is bound to exercise his rights and fulfill his obligations according to the principles of good faithThe legal order does not sanction the manifest abuse of a right”Article 3 of Civil CodeBona 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.”
7 Preliminary Chapter of Turkish Civil Code Article 4 of Civil CodeJudge’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”
8 Judge’s dIscretIONDiscretionPublic servantFor fulfillment of any assignment or attitudeLiberty to actJudge’s discretion---limitedEx. Article 27 of civil code – good causes– what are these?ARTICLE 27-Change of name may only be claimed from the judge.Any change made in the name is registered in the birth record and announced officially.Change of name does not result with change in the status of a person.The person suffering damage due to change of name may litigate within one year as of the date of notification of this fact claiming abrogation of the judgement given for change of name.
9 Judge’s dIscretION Law making- discretion----Differences Law making No provision applicable (neither in the law nor in the customary law) to the legal conflictDiscretionThere is applicaple legal rules but GENERALWithin the limits mentioned in the laws- choicesInterpretation and fill in the gaps
10 UsINg of JudICIal dIscretION No arbitrary(keyfi) usageAct in conformity with the followings:Within the limits of discretionAbide by the conditions (if mentioned) required by lawEquity ruleChoice should be compatible with lawsLegal grounds(gerekçe)– reasons should be mentionedBriefly: judge shall take into considerationThe position of the partiesthe characteristics of the conflictEquityLaw
11 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 CodeBurden 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.
12 Preliminary Chapter of Turkish Civil Code Article 7 of Civil CodeProof 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
13 Preliminary Chapter of Turkish Civil Code TÜRK MEDENÎ KANUNUKanun No Kabul Tarihi :BAŞLANGIÇA. Hukukun uygulanması ve kaynaklarıMADDE 1.- Kanun, sözüyle ve özüyle değindiği bütün konularda uygulanır.Kanunda uygulanabilir bir hüküm yoksa, hâkim, örf ve âdet hukukuna göre, bu da yoksa kendisi kanun koyucu olsaydı nasıl bir kural koyacak idiyse ona göre karar verir.Hâkim, karar verirken bilimsel görüşlerden ve yargı kararlarından yararlanır.B. Hukukî ilişkilerin kapsamıI. Dürüst davranmaMADDE 2.- Herkes, haklarını kullanırken ve borçlarını yerine getirirken dürüstlük kurallarına uymak zorundadır.Bir hakkın açıkça kötüye kullanılmasını hukuk düzeni korumaz.II. İyiniyetMADDE 3.- Kanunun iyiniyete hukukî bir sonuç bağladığı durumlarda, asıl olan iyiniyetin varlığıdır.Ancak, durumun gereklerine göre kendisinden beklenen özeni göstermeyen kimse iyiniyet iddiasında bulunamaz.III. Hâkimin takdir yetkisiMADDE 4.- Kanunun takdir yetkisi tanıdığı veya durumun gereklerini ya da haklı sebepleri göz önünde tutmayı emrettiği konularda hâkim, hukuka ve hakkaniyete göre karar verir.C. Genel nitelikli hükümlerMADDE 5.- Bu Kanun ve Borçlar Kanununun genel nitelikli hükümleri, uygun düştüğü ölçüde tüm özel hukuk ilişkilerine uygulanır.D. İspat kurallarıI. İspat yüküMADDE 6.- Kanunda aksine bir hüküm bulunmadıkça, taraflardan her biri, hakkını dayandırdığı olguların varlığını ispatla yükümlüdür.II. Resmî belgelerle ispatMADDE 7.- Resmî sicil ve senetler, belgeledikleri olguların doğruluğuna kanıt oluşturur.Bunların içeriğinin doğru olmadığının ispatı, kanunlarda başka bir hüküm bulunmadıkça, her hangi bir şekle bağlı değildir.
14 IMPORTANT!The rules regulating obligations between private persons are codified in a sperate code: Code of ObligationFirst Turkish Code of Obligation was adopted from Switzerland in 1926In 2011, new version of Code of Obligation was adopted.But, Code of Obligation is regarded as an integral part of the Civil CodeThe Code of Obligations consists of two main parts:General PrinciplesSpecials provisions---- sale of goods, loans, agency, rent
15 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”Legal personality begins with birthLegal personality ends at deathBetween 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)
16 Law of persons Persons are subjects of private law Law gives rights and imposes dutiesLaw of Persons- rules regulating the relationships of person in matters such as the creation and termination of personality, legal capacity of personClassification of PersonsReal personsLegal person--- (Example: a corporation, a foundation-vakıf, a professional association-meslek birliği)PrivatePublic
17 Capacity capacity to act: fiil ehliyeti, hakları kullanma ehliyeti capacity to be the subject of right: hak ehliyeti; haklardan yararlanma ehliyetiThe 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
18 The CondITIONS OF CAPACITY to act OF REAL PERSONs To attain majority---- Majority(Rüşt) is attained by reaching age of 18 yearsUnder 18 years- by marriage may attain majority (man 17, woman 15)By court decisionCompletion of age of 15 yearsDemand for having majorityTo be heard of legal representativebenefitMaturity- (Compos mentis -mümeyiz olmak)(iyiyi kötüden ayırabilme durumu)To be under age (yaş küçüklüğü)Mental disorderMental defect (akıl zayıflığı)Drunkenness (sarhoşluk)Not to be legal incapacity (Kısıtlı olmamak)
19 CLASSIFICATION OF REAL PERSON WITH RESPECT TO THEIR CAPACITY Full capacityLimited capacity to act--- Sınırlı ehliyetliFull incapacityPartial incapacity
20 LAW OF SUCCESSIONDeals with passage of a person’s property rights at his deathArticle 35/1 of Constitution“Every person has the right to own and inherit property”Regulated in Civil Code (Article )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 deathPeople may execute will– they may leave their property to real or legal person they as they choose
21 heIrs(mirasçılar) Two types of heirs: Statutory Appointed Expressly provided for by the Civil CodeThe heirs:the first line --- descendants(füru-altsoy) of the deceased personSecond line----If the deceased person left no descendants, the parents (usûl, üst soy) and their descendantsThird line--- his grandparents and their descendantsAmong 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 descendentsSurviving successorsEquality between male and female successorsAppointedExpressly and specifically designated by the deceased in a willAccording to our Civil Code, all persons having the requisite capacity, exercising sound judgement and who have completed 15 year have testamentary capacity.
22 Other person who may INHERIT Children born outside of marriageRecognized by fatherWhose paternity is established by courtMay inherit from their father equally to the children who were born within the marrigeAdopted childrenTreated the same as legimate natural born children of of the deceased.Receives the same amount as the other chldren of deceasedThe adoptive parents will not take from adopted child’s estate if he predeceases themSurviving SpouseShares the estate with leaving blood relatives of deceasedTogether with descendants of deceased-- surviving spouse ¼Together with second parental of deceased---- surviving spouse ½Together with grandparents of deceased surviving spouse ¾. If there is no grandmother takes the whole
23 famIly lawRegulates the relationship among persons such as engagement, marriage, divorce, parent-child relations, adoption, guardianship(vesayet)Property systems of spousesLegal Marital Property SystemParticipation in the acquired property (edinilmiş mallara katılım)Contractual system.separate property system (mal ayrılığı) shared separate property system (paylaşmalı mal ayrılığı)or community of property system (mal ortaklığı).