Turkish private law civil law презентация

Science

Introduction to Law – Lecture Notes

Dr. Özlem Döğerlioğlu IŞIKSUNGUR Source: Aybay,R. Introduction to Law 2011; Gözübüyük,Ş.Hukuka Giriş 2010

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

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)

1-7
Provisions regulated in “Preliminary Chapter” are the general principles which are applicable to all of the branches of private law.

sources of Law :
“The law must be applied in all cases which come with in the letter or the spirit of any of its provisions.
Where no written provision is applicable, the judge shall decide according to customary law and, in default there of, according to the rules which he would lay down if he, himself had to act as legislator.
Herein he must be guided by legal doctrine and case law.”
Law Making Function of Judge
Where provisions are inapplicable,
the judge should decide according to
a- the existing customary law
b- in default there of, the rules he would lay down,
if he himself had to act as legislator.

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.”

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”

Judge’s discretion---limited
Ex. Article 27 of civil code – good causes– what are these?
ARTICLE 27-Change of name may only be claimed from the judge.
Any change made in the name is registered in the birth record and announced officially.
Change of name does not result with change in the status of a person.
The person suffering damage due to change of name may litigate within one year as of the date of notification of this fact claiming abrogation of the judgement given for change of name.

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

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

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.

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

Kabul Tarihi : 22.11.2001
BAŞLANGIÇ
A. Hukukun uygulanması ve kaynakları
MADDE 1.- Kanun, sözüyle ve özüyle değindiği bütün konularda uygulanır.
Kanunda uygulanabilir bir hüküm yoksa, hâkim, örf ve âdet hukukuna göre, bu da yoksa kendisi kanun koyucu olsaydı nasıl bir kural koyacak idiyse ona göre karar verir.
Hâkim, karar verirken bilimsel görüşlerden ve yargı kararlarından yararlanır.
B. Hukukî ilişkilerin kapsamı
I. Dürüst davranma
MADDE 2.- Herkes, haklarını kullanırken ve borçlarını yerine getirirken dürüstlük kurallarına uymak zorundadır.
Bir hakkın açıkça kötüye kullanılmasını hukuk düzeni korumaz.
II. İyiniyet
MADDE 3.- Kanunun iyiniyete hukukî bir sonuç bağladığı durumlarda, asıl olan iyiniyetin varlığıdır.
Ancak, durumun gereklerine göre kendisinden beklenen özeni göstermeyen kimse iyiniyet iddiasında bulunamaz.
III. Hâkimin takdir yetkisi
MADDE 4.- Kanunun takdir yetkisi tanıdığı veya durumun gereklerini ya da haklı sebepleri göz önünde tutmayı emrettiği konularda hâkim, hukuka ve hakkaniyete göre karar verir.
C. Genel nitelikli hükümler
MADDE 5.- Bu Kanun ve Borçlar Kanununun genel nitelikli hükümleri, uygun düştüğü ölçüde tüm özel hukuk ilişkilerine uygulanır.
D. İspat kuralları
I. İspat yükü
MADDE 6.- Kanunda aksine bir hüküm bulunmadıkça, taraflardan her biri, hakkını dayandırdığı olguların varlığını ispatla yükümlüdür.
II. Resmî belgelerle ispat
MADDE 7.- Resmî sicil ve senetler, belgeledikleri olguların doğruluğuna kanıt oluşturur.
Bunların içeriğinin doğru olmadığının ispatı, kanunlarda başka bir hüküm bulunmadıkça, her hangi bir şekle bağlı değildir.

private persons are codified in a sperate code: Code of Obligation
First Turkish Code of Obligation was adopted from Switzerland in 1926
In 2011, new version of Code of Obligation was adopted.
But, Code of Obligation is regarded as an integral part of the Civil Code
The Code of Obligations consists of two main parts:
General Principles
Specials provisions---- sale of goods, loans, agency, rent

Code “Every person can be subject of rights, within limits imposed by law, they have an equal capacity to posses rights and duties”
Legal personality begins with birth
Legal personality ends at death
Between conception (ceninin ana rahmine düşmesi) and birth, the child is deemed to have legal capacity, on condition that the child borns alive (Article 28/II of Civil Code)

imposes duties
Law of Persons- rules regulating the relationships of person in matters such as the creation and termination of personality, legal capacity of person
Classification of Persons
Real persons
Legal person--- (Example: a corporation, a foundation-vakıf, a professional association-meslek birliği)
Private
Public

subject of right: hak ehliyeti; haklardan yararlanma ehliyeti

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

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)

to act--- Sınırlı ehliyetli
Full incapacity
Partial incapacity

his death
Article 35/1 of Constitution
“Every person has the right to own and inherit property”
Regulated in Civil Code (Article 485-682)
General rule: In the absence of an express provision made by deceased person, his estate (tereke) will go to his close relatives upon his/her death.If there is no one to State.
People are free to dispose of their property at their death
People may execute will– they may leave their property to real or legal person they as they choose

the first line --- descendants(füru-altsoy) of the deceased person
Second line----If the deceased person left no descendants, the parents (usûl, üst soy) and their descendants
Third line--- his grandparents and their descendants
Among the members of each parental those nearest in degree take the priority over those removed. Any predeceased person in any degree will be represented by his/her descendents
Surviving successors
Equality between male and female successors
Appointed
Expressly and specifically designated by the deceased in a will
According to our Civil Code, all persons having the requisite capacity, exercising sound judgement and who have completed 15 year have testamentary capacity.

paternity is established by court
May inherit from their father equally to the children who were born within the marrige
Adopted children
Treated the same as legimate natural born children of of the deceased.
Receives the same amount as the other chldren of deceased
The adoptive parents will not take from adopted child’s estate if he predeceases them
Surviving Spouse
Shares the estate with leaving blood relatives of deceased
Together with descendants of deceased-- surviving spouse ¼
Together with second parental of deceased---- surviving spouse ½
Together with grandparents of deceased surviving spouse ¾. If there is no grandmother takes the whole

parent-child relations, adoption, guardianship(vesayet)
Property systems of spouses
Legal Marital Property System
Participation 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).