In practice, borrowers sell their assets in order to prevent foreclosure on their existing assets, and transfer them as a security by pretending to be a sale. 3. Although some debtors are not actually debtors, they are not limited to the actions of debtors that fall within the scope of the crime. when you owe parties usually agree with and against them, signed the deed, real non-initiated enforcement proceedings in debt due rights that won’t appeal to follow-up before the finalisation of such a lien creditors to the assets then the actual permission they lead to actual receivables of the creditors to exhibit attitudes and behaviors that prevent you from taking is frequently observed.
331 of the Enforcement and Bankruptcy Code of 2004 in relation to this issue. Article 1. paragraph: “The debtor after the follow-up request by way of foreclosure or within two years prior to this request; in order to the detriment of creditors, goods or other property or by disposing of waste from the value by lowering a portion of them or genuine in the way muvazaa hiding under the responsibility of the principal or by passing others by means of non-profess assets by the eksiltirs by artificial means debts, or a creditor has obtained a document that proves helpless against it if he cannot take six months imprisonment and fined three thousand years until the day.” he is the best judge.
Legislator, Executive and Bankruptcy Code 331. With its article, it aimed to protect the rights of creditors arising from the follow-up law by providing for imprisonment and a judicial fine for such actions and behavior of debtors.
The fact that the debtor acted with the aim of causing the creditor to lose is one of the necessary conditions for the occurrence of a crime. Therefore, the debtor has the right to 331. in order to be punished within the scope of the article, it must be malicious. In addition, the debtor has committed one of the acts of removing or destroying all or part of his property from his property, or transferring it to someone else by depositing it in real form or hiding it, or reducing the availability of property by admitting non-principal debts. The fact that the debtor has apparently taken away his property / property also means that his presence has been reduced.
The debtor has removed or destroyed his property at a price well below its real value, and the transfer of his assets to someone else in an unsuccessful transaction or the reproduction of his passivity by creating debts that are not will also result in a reduction in the asset. 37 of the Turkish Criminal Code entitled “Participation in Crime”. in its article, “Each of the persons who jointly perform the act contained in the legal definition of the crime shall be liable as a perpetrator.” To encourage the commission of a crime or to strengthen the decision to commit a crime or to promise to provide assistance after the commission of the act, to provide guidance on how to commit the crime or to provide the tools used in the commission of the act, to facilitate its execution by providing assistance before or during the commission of the crime”, TCK 39. according to Article 331/1 of the IIK, although the person responsible for the crime is in debt, the persons who contributed to the commission of the crime can be punished in accordance with the provisions of participation in the crime in accordance with the above-mentioned provisions of the TCC.
For example, those who initiate enforcement proceedings against the debtor by issuing a promissory note, contribute to the debtor’s performance of promissory transactions, and help increase the debtor’s passivity, will be punished for their participation in the crime. If the debtor is a legal entity, the liability is 345, since legal entities do not have a criminal license. in accordance with the article, the legal entity belongs to natural persons authorized to represent and administer.
It should be remembered that in order for the crime to occur, the borrower must have committed his actions that reduce his presence within a certain time frame. In the text of the article, this aspect is stated as: “After the follow-up request by foreclosure or within two years before this request”. But 347 of the Executive Bankruptcy Code entitled ”Complaint period”. in its article, “The right to complain about the acts contained in this Document falls on the expiration of three months from the date of learning the act and, in any case, one year from the date of committing the act. it contains the provision “. 331. article 347, when counting retrospective transactions within 2 years as part of a crime. the disclosure that the right of complaint will be Decommissioned within the period of 1 year by the article creates a contradiction between both articles of the law.
For this reason, although 331. although the article says that transactions within a 2-year period backwards before the foreclosure and follow-up request may be the subject of a complaint, due to the limitation period of the right to complain, the borrower may be criminally liable for actions performed within a maximum of one year due to the limitation period. Since the right to complain will have disappeared due to acts dated more than a year ago, the debtor will not bear any responsibility.
Another condition is that the creditor must incur losses. The burden of proof of loss is on the creditor. The creditor is obliged to prove this fact by proving that he cannot collect the receivables in the enforcement proceedings initiated against the debtor. In practice, the incapacity certificate obtained from the execution file is used as a proof tool. There are two types of incapacity certificates, temporary and final. Although it is not explicitly stated in the law, it is accepted in the doctrine that the incapacity document sought by the law is the definitive incapacity document. In order for the creditor to receive a definitive incapacity certificate from the execution file, there are no securities, real estate belonging to the debtor, the debtor 3. it is necessary to certify that people do not have rights or receivables.
You can review the precedent Supreme Court Decision given below on this issue.
SUPREME COURT 19. CRIMINAL DEPARTMENT
2015/28241
2017/7974
10.10.2017
CASE : The verdict given by the Local Court was appealed, but the file was examined according to the duration of the application, the nature of the decision and the date of the crime, and it was discussed and considered as necessary:
DECISION : Since there were no reasons for rejecting the appeal request, the merits of the work were moved.
In the examination conducted according to the minutes, documents and justification content reflecting the trial process in which the conscientious opinion was formed;
Article 331 of the Enforcement and Bankruptcy Code of 2004, which is attributed to the defendant. in order for the crime of “reducing its presence with the intention of bringing its creditor to harm “regulated in the article to occur; ”complainant/or enforcement proceedings by way of enforcement proceedings after the commencement of the creditor garnishment of two years from the previous period, the borrower if the value drops by their property destroyed, their wealth conceals, muvazaa gets under the responsibility of others by means of their goods, or if non-original assets by creditors and debts to acknowledge the harm and vicious eksiltirs to do with one of these actions with them the complaining creditor, the debtor has obtained a document to prove that you cannot receive or helpless against the material and spiritual elements of the crime will be formed.
In addition, the borrower is required to comply with Article 331 of the IIK. in order for the regulation in the article to be considered a crime, it also depends on the condition that the creditor has suffered from these actions of the debtor.
Therefore, in order to determine whether the transfer of real estate subject to action by the court to third parties is carried out in order to damage the creditor, first of all, real estate transfer contracts for real estate and mortgage facility contracts have been introduced for real estate; paying paid pays the real estate to the defendant without being heard as witnesses, selling the real estate transferred with the actual costs of the real estate transferred, determining who or by whom the transferred real estate is still being used as of the date of complaint, Deciphering whether there is a close kinship relationship between the transferring defendant and the inheritors, and investigating whether the transferred real estate is paid by the actual debtor company as specified in the defendant’s defense, issuing an acquittal decision in writing with incomplete prosecution,
CONCLUSION: Since the reasons for the appeal of the deputy of the complainant and contrary to the law are considered to be in place as of this date, the PROVISION in accordance with the communiqué is 8/1 of the Law No. 5320. article 321 of CMUK No. 1412, which must be applied in accordance with the article. according to the article, it was decided unanimously on 10.10.2017 that the case would be OVERTURNED, that the trial would be continued starting from the pre-trial stage and that the file would be sent to the court for conclusion.
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