T.C
SUPREME
GENERAL ASSEMBLY OF LAW
MAIN NUMBER: 2017/19-897
DECISION NO:2018/464
DECISION DATE: 14.03.2018
>>THE NEGATIVE DETERMINATION CASE IS THE POINT OF WHETHER THE SECURITY DEED SIGNED BY THE DEBTOR AND GIVEN TO THE SECOND PERSON IN BLANK WILL BE ACCEPTED AS PART OF “DECEPTION” (= CHEATING) AS A RESULT OF THE EXECUTION PROCEEDINGS AGAINST THE DEBTOR BY THE DIVORCED WIFE OF BOCHLUN, AND WHETHER THE WITNESS EVIDENCE WILL BE USED AS A MEANS OF PROOF ACCORDING TO THE CONCLUSION TO BE REACHED HERE.
SUMMARY:the plaintiff debtor “Bono arranged to constitute the warranty of any other commercial relationship given, however, concerns upon this deposit does not accept Bono who captured the defendant, put in bonds, followed by filling the gaps in their favor”relating to the claim, “deception” does not fit the definition of evidence and the witness could not be referenced in this respect- Contract theory and the principle of trust is taken into account when entrusted to him or in blank Bono reason of the defendant, in violation of the agreement expressed in the form of the claim that is filled out in its favor, however, can be proven by written evidence that the offence of forgery of official documents about the drop in criminal proceedings the defendant “to be turned back to the announcement of the award (HAGB)” will not count as a conviction will not judge any given decision and the law- It is not appropriate for the local court to consider the allegations as “deception” and to decide by applying to witness evidence to prove it
Bursa 2 At the end of the “negative determination” case Decider between the parties. The day given by the Commercial Court of First Instance regarding the acceptance of the case is 17.06.2013 and 2011/701 E., 2013/242 K. judgment numbered, defendant M.A.Y. on appeal by the deputy, the Supreme Court 19. The date of the Civil Chamber is 17.04.2014 and is 2014/3592 E., 2014/7662 K. with the numbered decision:
“…The plaintiff’s attorney seized the blank deed that the defendant, who is the ex-wife of his client, signed to give to another person as collateral during their marriage by filling out 150,000.00 TL on Bursa 18. Stating that the Enforcement Directorate had put him under follow-up in its file numbered 2011/15402, he requested and sued for the determination that his client was not indebted due to this deed, the cancellation of the enforcement proceedings and the decision on 40% bad faith compensation.
The defendant’s attorney stated that they did not accept the lawsuit filed, that although the parties divorced in 2005, his client worked at the plaintiff’s workplace until 2008, that the deed subject to the lawsuit was prepared to be issued as a security deed, the plaintiff must prove with written evidence, and requested that the case be dismissed and damages for malice be decided against the plaintiff.
The court found that the plaintiff’s witnesses were heard because the plaintiff alleged fraud, the defendant’s witnesses who were heard did not have eyewitness information about the issuance of the deed, one of the plaintiff’s witnesses was T.G., L.Ç.ve D.He.’s given to companies who do business with blank to be signed by the plaintiff’s cafe bills, promissory notes, securities of the company do not accept to be given to the defendant on the fact that plaintiff had received the statements, the plaintiff must be submitted to land registry file that belongs to the family records from both the plaintiff’s and he was quite wealthy 150.000,00 TL economic situation is good, no need to borrow money, the defendant does not have the economic power to lend the plaintiff 150,000.00 TL, the defendant, who is economically much weaker than the plaintiff, lending money to the plaintiff is contrary to the usual flow of life, the signature and amount in the deed subject to the lawsuit received from the Istanbul Forensic Medical Institution by the Bursa Chief Public Prosecutor’s Office are written in separate pens from the expert report, witness statements and the entire scope of the file of the defendant, it is understood that the plaintiff took the deed he signed to give to the plaintiff, saying that he would give it to the plaintiff, and then put it on enforcement proceedings, on the grounds that the defendant could not prove that he had lent the plaintiff money in the amount written in the deed, the plaintiff’s case was accepted, the plaintiff’s Bursa 18. 150.000,00 dated 20/11/2009 maturity, which was followed up in the 2011/15402 main numbered file of the Enforcement Directorate. 60.000,00, which is 40% of the original receivable, to the determination that the defendant is not owed for the promissory note with a value of TL. TL It was decided that the bad faith compensation was taken from the defendant and given to the plaintiff and appealed by the defendant’s attorney during the court decision period.
(1) Although the plaintiff’s attorney requested that the appeal review be conducted as a murafaalı with his petition dated 08/10/2013, it is understood that the petition requesting murafaa was granted after the deadline for joining and filing an appeal, it was decided to conduct the appeal review through the file with the rejection of the plaintiff’s attorney’s request for a hearing.
(2) The case is related to the request to determine that there is no debt due to the exchange promissory note that is alleged to have been received based on fraud. The plaintiff’s claims BK m. 28 (TBC.m. 36) cannot be considered as the specified cheat. The determination that there is no debtor against the exchange notes must be proved with written evidence. The decision of the court in writing as a result of incorrect evaluation without taking into account these issues necessitated an annulment … ”
the court resisted the previous decision at the end of the trial, which was overturned with its justification and the file was returned to its place and re-conducted by the court.
APPELLANT: Defendant M.A.Y. attorney
DECISION OF THE GENERAL ASSEMBLY OF LAW
The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the documents in the file were read, the necessity was discussed:
The case is related to the request to determine that the bond, which is alleged to have been seized with a criminal act and signed by disclosure, is not owed.
The plaintiff’s attorney stated that the defendant and his client were married in the past; that during their marriage, the defendant worked in the business owned by his client and was allowed to access the documents with the confidence he felt, and that he had the key to the safe; during this period, his client signed as collateral to give to someone else taking over 150.000 TL exercised by filling blank stock you’ve been tracking, but what his client had to take on such a debt from the defendant nor the defendant to give a situation where this money has the economic power by asserting that the client is owed for the bills determination, the cancellation of the execution proceedings and 40% compensation has prosecuted and demand that it be given to the decision.
The defendant’s attorney stated that the parties divorced in 2005, but his client worked at the plaintiff’s workplace until 2008, that the burden of proof was on the plaintiff, and requested that the case be dismissed and compensation be decided against the plaintiff.
The court found that the plaintiff’s claims are within the scope of cheating (deception), in this context, the witnesses heard did not have any information based on etiquette regarding the arrangement of the bond, but some of them signed blank bonds to be given to suppliers by the plaintiff, were handed over to the defendant to be given to the plaintiff after the suppliers did not accept the bond as collateral; the plaintiff and his family are quite wealthy and do not need to borrow this amount, the defendant also does not have the economic strength to lend this amount, the acceptance of a debt relationship in this way will not be appropriate for their general life experience; In the Forensic Medicine Institution report received by the Public Prosecutor’s Office, it was stated that the signatures on the notes were signed with different items, and in this context, it was decided to accept the case on the grounds that the defendant could not prove that he had lent the plaintiff the amount written on the bond, to determine that the plaintiff did not owe the defendant due to the bond, to receive compensation in the amount of 40% of the original receivable from the defendant and to give it to the plaintiff.
Upon the appeal objection of the defendant’s attorney, the decision was overturned by the Special Chamber on the above grounds.
The local court resisted the previous decision.
Resist the decision of the deed were seized and the plaintiff’s attorney the defendant by fraud essentially arranged for him to be given as collateral, but they refused to accept the shares of the company upon the plaintiff to be given to the client in the callback that receives the bonds of the claim is untrue; a law school graduate and a lawyer, he needs to know how it will be organized the plaintiff’s bonds, the absence of collateral on the bond in case the phrase; blank promissory note signed on the prudent trader will not leave you unattended expose no sign, stock, or if he loses the deed is stolen, report it immediately to the police or the prosecution that after three years, the stock had been stolen completely contrary to the facts found that general life experiences and to declare that, no one will not sign blank bills, and signed the deed and of all the elements, even if a certain amount is full, the fate of the signed deed will look for necessarily; The court reasoned decision based on information relating to the issuance of the deed witnesses that the defendant is not to express that in the face of experience, for a moment, to be given to the various companies since the return of stocks held as collateral for purposes of monitoring has been promised to be the case even with bonds held as collateral for the bonds is the bond which forms the basis of a statement by a witness was not the same, and no other data are not available; written in the text of the deed of non-collateral only with the written evidence of claims that can be proven; in this context, the statements of the plaintiff’s witnesses that were heard do not reflect the truth, because the witnesses consist of elements who worked with the plaintiff and his close circle of friends, and their statements are abstract and contradictory; the demand of the collateral bonds of the companies that they had also studied written evidence submitted could not be filled in the blank for this purpose by companies requested and bonds when bonds are held by companies which are not accepted by the request of the company, instead, a check is requested in relation to the evidence presented to support the claim that the orders given where instead of bonds; considering that the key to the safe is in his client, he will be able to get them directly from the safe, while the witness understands that the statement that he asked Leyla and therefore the claim that the bond was seized by fraud is a completely unrealistic scenario product; the subject of the case is based on the bond you will receive, although the court’s decision to resist stated that it cannot be proven that your client lent money to the plaintiff, they have never claimed that they are based on the loan agreement you will receive, in order to prove that your client will receive, he also has to assert the subordinate relationship in the receipt of the bond and is not obliged to prove the subordinate relationship; both witnesses in the petition need to file the case and you have submitted all of the client in the narrative of the unemployed, powerless, penniless, is from a creditor has been declared to be that it is impossible for the plaintiff, where the plaintiff and his client only without a past relationship a marriage relationship between the parties on the subject of commercial exchange between my client, the plaintiff ‘K… E…’, named actively working as an administrator in the restaurant, your client that it is documenting a large number of made via bank transfer to pay to the plaintiff; they gotta witness accounts from bank records and payment between the parties and file with the documentation submitted to marriage, during and after long-term, they put the existence of a commercial relationship; your client may not be the case from the plaintiff the obligee in the bond, according to the life experiences of how general; how to file submitted to the court that the plaintiff and his family belongs to the plaintiff’s Land Registry records 150.000 TL no need to borrow money from the wealthy and quite good in the economic situation, my client 150.000 TL in the absence of economic power to lend to the plaintiff, the plaintiff lent money to the plaintiff by the side of running your client much weaker economically, the ordinary flow of life has been declared contrary to the opinion that if a creditor has to legally from one another, the economic situation of the creditor if the debtor is requested to be better economic situation, otherwise you will get all kinds of the parties in enforcement proceedings in the case and to investigate the economic and social situation of the creditor by the debtor the creditor is superior to the side from the side that will have to be investigated whether economic; my client, the plaintiff is legally required documentation from the creditor with the bill for these matters to be proven by the parties, although the economic status of; according to the balance sheets submitted by the plaintiff as a means of proving his economic power, the plaintiff’s economic situation was poor at that time, and the land registry records submitted belonged to real estate acquired later and by inheritance; the rule that witnesses cannot be heard against the bond during the trial was violated; bono by the plaintiff upon the request of the plaintiff it was filled with a different pen and signed by the client, pointing out the situation of the forensic report of the decision to be postponed and finally the announcement of the award that does not constitute a judgment against his client and conviction by the court of Appeal and cassation appeal on the road doesn’t mean its own motion to see the poet’s reasons for appeal.
The dispute that comes before the General Assembly of Law by way of resistance: in terms of the concrete event, it is collected at the point of whether the plaintiff’s claims will be accepted within the scope of “deception” (= cheating) and whether the witness evidence can be applied as a means of proof according to the conclusion to be reached here.
In order to resolve the dispute, it will be appropriate to provide brief information about the bond and the collateral function in this context, the allegation that the bond was arranged by deception and the rules of proof related to them, as well as the impact of the criminal case on civil proceedings.
Article 688 of the Turkish Commercial Code No. 6762, which is in force at the time of discovery and maturity of the bond subject to litigation and follow-up, indicated the elements of the bond, and Article 690 stated that some provisions related to policies will also apply to bonds, unless they contradict their nature.
As a negotiable instrument and, in this context, a bill of exchange, a bond is a qualified and abstract debt recognition in which the right contained in it cannot be asserted separately from the bill and cannot be transferred to others (eTTK m.557, TCC m.645, and Oztan, F.: Law of Negotiable Instruments, 2.b., Ankara 1997, p.975; Kinacioglu, N.: Law of Negotiable Instruments, 5.b., Ankara 1999, p.247). The discoverer of the bond makes an abstract promise to pay a certain price shown in the bond unconditionally and unconditionally in person. Abstractness (mücerretlik) means that the basic legal relationship that causes the birth of the right contained in the deed cannot be understood from the text of the deed. The first feature that abstractness imposes on the year is that the holder no longer needs to present any evidence other than the deed that he is the creditor of the receivable shown in the deed; he can prove that he will receive only with this deed (Oztan, p.173; Poroy, P./Tekinalp, Ü.: Principles of Negotiable Instruments Law, 15.b., Istanbul 2001, p.25).
Bonds, as a rule, are a means of credit. On the contrary, unless there is a contract or custom, the general principle of simultaneous and mutual performance of actions (TCO m.96) as an exception, the debtor who has received the counteraction of the subordinate legal relationship may issue a counterclaim by issuing a bond instead of paying the money debt immediately. It can even link these payouts to bonds it has issued in installments and with consecutive maturities. Thus, while bono saves the payer time in payment, it also provides the beneficiary with the opportunity to maintain a commercial relationship through turnover. In practice, it is seen that bonds are also arranged for collateral purposes. Indeed, even in cases where it is unclear whether a debt will arise from the subordinate relationship between the parties and what the amount of it will be, if it will arise, the parties may issue a bond or turn over an existing bond for this purpose (Dec.689). It should be noted right away that since bills of exchange are usually issued for an existing debt, it is exceptional that they are issued for collateral purposes, and this situation is closely related to abstraction. Indeed, the act of writing text for the purpose of the bond collateral that was given in the abstraction are eliminated, and the ability to transfer of this phrase is limited and when it is written to the collateral of a drawer to prove the claim, demonstrates a need for written evidence to be limited to beneficiaries; in bad faith or gross negligence claims against foreign creditors guarantee beneficiary outside of these purchases cannot be claimed unless the bono (by analogy TTK m.680).
In Turkish legal teaching, the dominant view on the birth of the right contained in bills of exchange is explained by the theory of contracts, which is supported by the principle of trust. According to this theory, the right contained in the bill of exchange is not immediately realized by issuing it, for the birth of the debt, it is also necessary to give the bill to the beneficiary with the intention of going into debt, that is, the existence of a similar contract for delivery (Bozer, A./To the Lake, C.: Law on Negotiable Instruments, 7.b., Ankara 2017, p.21; Yilmaz, A.L.: Def’iler in Bills of Exchange, Istanbul 2007, p.51; Oztan, p.106; Kınacıoğlu, p.30 et seq.).
On the other hand, Article 659 of the Turkish Commercial Code states that the theory of legal appearance will also be taken into account. The conclusion reached from these explanations and regulations is that at the point of birth of the right contained in the bill of exchange from the point of view of Turkish law, it is necessary to evaluate theories together according to the characteristics of the concrete event. Dec.
The establishment of an exchange agreement is possible with the disclosure of mutual and mutually appropriate wills in accordance with the general provisions of the Turkish Code of Obligations. The provisions of the same Law are also taken into account regarding the disclosure and mutilation of wills.
The wills set forth in the establishment of a legal transaction and a contract in this context must be intact and not subject to termination with another expression. If the deterioration in the will occurs as a result of deception (cheating) of the other party to the contract or a third person, the declarant cannot be held bound by the contract (818 p. eBK m.28; TBK m.36). According to EREN, the act of deliberately arousing a false belief in someone in order to induce them to make a will statement, especially to make a contract, or to protect or maintain a false belief that is essentially present, is called deception (Eren, F.: General Provisions of the Law of Obligations, 22.b., Ankara 2017, p.414; Kocayusufpaşaoğlu in the same direction, N./Khatami, H./Serozan, R./Arpaci, A.: Law of Obligations General Section, C.I, 6.b., s.452; Oguzman, M.K./Self, M.T.: General Provisions of the Law of Obligations, 3.b., Istanbul 2000, p.93 et seq.).
Deception (cheating) can be performed with a verb. This verb can be an active movement, as well as a passive behavior, a state of avoidance or silence (Eren, p.415; Oguzman/Self, p.94; Kocayusufpaşaoğlu/Hatemi/Serozan/Arpacı, p.453). Deception is an actual material case, and the legislator, foreseeing that it is not possible to connect this case in a year, has responded to the application of witness evidence as a means of proof (HUMK m.293/5; HMK m.203/o). This regulation, especially in terms of written contracts, the rule of proof by deed against deed (HUMK m.290; HMK m.201) constitutes one of the important exceptions (Kuru, B.: Civil Procedure, C.II, 6.b., Istanbul 2001, p.2297; Postacioglu, I.E.: Satisfaction and Boundaries of Proof with Martyrdom, Istanbul 1952, p.208 et seq.; Erdönmez, G.: Pekcanitez Civil Procedure Law, C.II, 15.b., s.1857).
In the light of the principles described above, it is concluded that an abstract debt is created from the original debt relationship that is the basis for issuing bills of exchange and these, the person holding the notes also does not have to prove the subordinate relationship; bills of exchange can also be obtained by deception, and the case of deception can also be proved by a witness.
The effect of criminal court decisions on civil cases is defined in Article 74 of the Turkish Code of Obligations (art.53) has been edited. According to Article 53 of the Code of Obligations No. 818, which is in force on the date of the discovery of the bond subject to litigation and follow-up, the civil judge is not bound by the rules of criminal law on liability in determining whether the fault or the perpetrator of a tort has the power of discrimination, nor is he bound by the acquittal decision of the criminal court that touches on this direction. The decision of the criminal court also does not bind the civil judge on the discretion of the defect and the determination of the amount of damage. As can be seen, the fact that the act does not constitute a crime in terms of criminal law cannot be assessed in the form that the act cannot be considered a tort in the sense of private law from the point of view of the perpetrator and does not give rise to liability.
The doctrine adopts the view that the decisions of conviction will not bind the judge either (Eren, p.852; Deshenaux, H./Tercier, P.: Liability Law, trans. S. Ozdemir, Ankara 1983, p.174-175; Kılıçoğlu, A.: The Relationship between Criminal Law and Civil Law in Liability for Tort Acts, AÜHFD, C.XXIX, P.3, p.200). However, this non-binding is not unlimited; in particular, it is accepted that the decisions of the criminal court determining the material case can only be evaluated by the civil judge with this aspect (HGK, 26.11.2014 day and 2013/4-1183 E., 2014/960 K.).
When the concrete event is evaluated within the framework of the legal regulations and principles described above;
The claim of the plaintiff is that the bond was issued by arranging it to constitute the guarantee of another commercial relationship, but the defendant who seized the bond after the relevant person did not accept this guarantee, filled in the gaps in the bond in his favor and put it on the follow-up. This claim does not constitute a deliberately false belief by the defendant about the issuance of bonds by the plaintiff, or the protection or maintenance of the false belief that is essentially present, and does not meet the definition of deception.
Since it has been concluded that the plaintiff’s claims cannot be accepted within the scope of deception, it is understood that the witness evidence cannot be applied in the context of proving them. Taking into account the theory of contract and the principle of trust, the claim expressed in the form that the defendant filled out the blank bond deposited with him for one reason or another in his favor contrary to the agreement between can only be proved by written evidence (HUMK m. Dec.290; H.M.K. m.201).
Bursa 14 on the charge of forgery of official documents about the defendant. Although a public lawsuit has been filed in the Criminal Court of First Instance, this lawsuit was issued at the end of 16.01.2014 days and 2012/730 E., 2014/22 K. with the numbered decision, the decision to postpone the announcement of the verdict (HAGB) was made. Since this decision will not be considered a conviction decision, it does not bind the civil judge (in the same direction, HGK, 19.02.2014 day and 2013/23-320 E., 2014/118). Moreover, the criminal court waited for the decision of the civil court and established the aforementioned provision on the decision on negative determination. As a matter of fact, the Special Chamber also returned the file to the court for the addition of the criminal court file mentioned before the appeal review and decided to resist by examining the criminal trial file.
Therefore, the court’s assessment of the allegations as deception in a way that does not comply with the legal definition, and the decision it made by applying to witness evidence to prove it, and the decision to resist formed on the same grounds are not appropriate.
In this case, while the decision to overturn the court should be obeyed, resisting the previous decision is against the procedure and the law.
Therefore, the decision to resist must be overturned.
CONCLUSION: For the reasons written above, the defendant M.A.Y. with the acceptance of the appeals of the deputy, it was unanimously decided on 14.03.2018 to OVERTURN the decision to resist for the reasons indicated in the decision to overturn the Special Chamber, to return the appeal advance fee to the depositor if requested, to correct the decision within a fifteen-day period from the date of notification, so that the way to correct the decision is open.
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