T.R.
SUPREME COURT
Great General Assembly
Base Number: 2010/1
Decision No: 2012/1
Decision Date: 10.02.2012
ABSTRACT: Turkish enforcement law clearly violates Turkish public order, which foreign court decisions carry.
He is concerned with whether or not he will. Moreover, it is up to the enforcement judge to examine and consider the reasoning of the decision.
It is not even given the duty and authority to take it. Foreign court decision, procedural law of the country in which it was issued
It is subject to rule > lex fori > rule. Enforcement conditions, how and to what extent these rules are enforced
He has shown that he will prevent it separately. It is seen that in the foreign court decision, Turkish Procedure
A law in the sense of the Law of Civil Procedure No. 6100, which has just entered into force.
The absence of a justification is not a phenomenon that requires the intervention of the Turkish public order on its own.
In principle, each court applies its own national procedural provisions, so the application of the foreign court
The fact that the procedure it implements is different from Turkish law is not a reason for the intervention of public order. same
The principle is also valid in terms of the rules of the law of proof applied in the foreign court decision.
An unjustified foreigner created and finalized without the exclusive right to be heard
Enforcement by stating that the court decision is contrary to Turkish public order for this reason alone.
Denial of the request will also violate the lex fori principle.
(5718 S. K. art. 50, 52, 53, 54, 55, 56, 57) (2675 S. K. art. 34, 36, 37, 38, 39, 40, 41) (2709 S. K. art. 141)
(6100 S. K. Art. 297, 298) (1086 S. K. Art. 388) (YHGK. 27.05.2009 T. 2009/19-102 E. 2009/208 K.)
(YHGK. 21.06.2000 T. 2000/2-1051 E. 2000/1068 K.) (2. HD. 08.06.2006 T. 2006/2612 E. 2006/9147
K.) (13. HD. 02.10.2003 T. 2003/6226 E. 2003/11095 K.) (13. HD. 05.12.2001 T. 2001/9007 E.
2001/11406 K.)
I- Application on Combining Jurisprudence
Whether the unjustified foreign court decision is contrary to public order, and
In this context, whether the lack of reason will prevent the enforcement of the foreign court decision.
the decisions of the 2nd Civil Chamber of the Court of Cassation with the decisions of the same Chamber and the 13th Civil Chamber of the Court of Cassation.
Claiming that it is in contradiction with the decisions of the Department, the disagreement of opinion can be made by combining the jurisprudence.
removal, Atty. It was requested by Serpil Alatalı Bayburtun’s application dated 24.11.2009.
II- Decisions Subject to the Request for Removal of Disagreement
Decision of the 2nd Civil Chamber of the Court of Cassation dated 30.06.1999 and numbered E:1999/5858 K:1999/7609.
Decision of the 2nd Civil Chamber of the Supreme Court, dated 08.06.2006 and numbered E:2006/2612 K:2006/9147.
Decision of the 13th Civil Chamber of the Court of Cassation dated 05.12.2001 and numbered E:2001/9007 K:2001/11406.
Decision of the 13th Civil Chamber of the Court of Cassation dated 02.10.2003 and numbered E:2003/6226 K:2001/11095.
Decision of the Supreme Court of Appeals General Assembly dated 21.06.2000 and numbered E:2000/2-1051 K: 2000/1068.
Decision of the Supreme Court of Appeals General Assembly dated 27.05.2009 and numbered E:2009/19-102 K: 2009/208.
III- Summaries of the Opinions Expressed in the Decisions Subject to the Request for Elimination of Disagreement
In the decision of the 2nd Civil Chamber of the Court of Cassation dated 30.06.1999 and numbered E:1999/5858 K:1999/7609; reason
The foreign court decision, which does not contain and is stated to be a temporary divorce, does not comply with the Turkish public order.
declared to be inconsistent.
In the decision of the 2nd Civil Chamber of the Supreme Court, dated 08.06.2006 and numbered E:2006/2612 K:2006/9147; recognition and
the correctness of the foreign court decision in enforcement, the procedural provisions that have been applied, the material and
that legal determinations should be excluded from the examination and that it is clearly contrary to public order,
Fundamental rights and freedoms regulated by the Constitution, basic principles accepted in international law,
the right to a fair trial and defense, general morality, the basis of the Turkish legal order and
the state is limited to the cases of violation of the principles that it cannot give up, and in this respect, the foreign court
that the unjustified decision is contrary to public order and therefore cannot be accepted as an obstacle to enforcement.
It has been stated, and it has been announced by the aforementioned Department Head that their stable last practices are in this direction.
of the 13th Civil Chamber of the Court of Cassation 05.12.2001 day and E:2001/9007 K:2001/11406 and 02.10.2003 days and
E:2003/6226 K:2001/11095; contain the justification of foreign court orders
Failure to do so will constitute an obstacle to recognition and enforcement as it is contrary to the Constitution and public order.
adopted, the same direction was pointed out in the opinion writings.
In the enforcement of foreign court judgments of the General Assembly of the Supreme Court of Appeals, with direct invalidity
Although there is no relevant decision; 21.06.2000 days, M:2000/2-1051 K:2000/1068 and 27.05.2009
day, M:2009/19-102 K: In the decisions numbered 2009/208, both in the implementation of the Law numbered 2675 and
The examination and examination of the content of the foreign writ in the implementation of the Law No. 5718 in force.
It has been accepted that the measure of public order is sufficient for the audit.
water case
; Regarding the subject of the General Assembly of Law, enforcement of foreign court decisions
since it has not had a decision directly regarding invalidity; The decisions of the Second Civil Chamber
It is clear that it is in contradiction with the decisions of the Thirteenth Civil Chamber.
IV- Decisions Regarding the Need to Eliminate Disagreement by Combining Jurisprudence and
The Subject of Consolidating Jurisprudence
With the decision of the First Presidency Board of the Supreme Court dated 29.11.2010 and numbered 158;
On whether foreign court decisions that do not contain justifications will prevent enforcement.
of the Second Law Office dated 30.06.1999 E:1999/5858 K:1999/7609, dated 08.06.2006 E:2006/2612
K:2006/9147, Thirteenth Civil Chamber dated 05.12.2001 E:2001/9007 K:2001/11406, 02.10.2003
date E:2003/6226 K:2003/11095, there is a difference of opinion and different
Since it was concluded that the practices are continuing; Law General
The meeting date should be determined by the First Presidency later, as it should be resolved by the Board of Directors.
It was decided to appoint a reporter member.
Rapporteur at the session of the Supreme Court of Appeals Unification Law General Assembly dated 10.02.2012
After hearing the member’s explanations, before entering the merits; first of all, the opinion among the jurisprudence
It is decided that there is a contradiction and that this contradiction should be corrected by combining the Ijtihads.
and the subject of Consolidation of Jurisprudence is that the pure reason for foreign court decisions
Whether the absence of a foreign court decision will prevent the enforcement of the finalized foreign court decision or not.
Within the meaning of Article 54/c of the Law No. 5718 on International Private and Procedural Law
It has been determined whether it will be considered as a clear violation of public order.
V- Rationale for Combining Jurisprudence
1- Legal Regulations on the Subject
A) Constitution of the Republic of Turkey
Open hearings and reasoned decisions
Article 141- Hearings in the courts are open to everyone. Some or all of the proceedings
be closed only when public morals or public safety absolutely necessitates it.
can be decided.
Special provisions shall be made by law regarding the prosecution of minors.
All decisions of all courts are written with reasons.
It is the duty of the judiciary to conclude cases with the least expense and as quickly as possible.
B) Code of Civil Procedure No. 6100
Scope of the provision
ARTICLE 297- (1) The sentence is given in the name of the Turkish Nation and covers the following issues after this phrase:
a) Names and surnames of the court giving the verdict and the judge or judges and the record clerk, and the registry
numbers, if the court serves in various capacities, in which capacity the judgment was given.
b) Identities of the parties and those participating in the case, and the Republic of Turkey identification number, if any, legal
the names, surnames and addresses of the representatives and proxies.
c) The summary of the claims and defenses of the parties, the points they agreed and disagreed,
the evidence gathered about the facts, the discussion and evaluation of the evidence, the fixed
the facts and the conclusions drawn from them and their legal reasons.
ç) As a result of the judgment, the court expenses and the return of the unused portion of the advance received from the parties,
legal remedies and duration, if any.
d) The date of the verdict and the signatures of the judge or judges and the record clerk.
e) The date on which the reasoned decision was written.
(2) In the concluding part of the provision, without repeating any word of the reason, each of the claims
Under the serial number of the debts and the rights granted to the parties, with the provision given about it; open,
It should be shown in a way that does not arouse suspicion and hesitation.
C) Repealed Code of Civil Procedure No. 1086
Article 388 – The decision covers the following issues:
- Names and surnames of the court that made the decision and the judge or judges and the clerk of the minutes and registry
numbers, if the court serves in various capacities, in which capacity the decision was made, - Identities of the parties and the participants in the case, and the names and surnames of their legal representatives and proxies, if any.
with addresses, - Summary of the claims and defenses of the two parties, the points they agreed and did not agree, the disputed issues
The evidence gathered about him, the discussion of the evidence, the reasons for rejection and favor,
the conclusion and legal reason deduced from them, - As a result of the judgment and if any, legal remedy and its duration,
- The date of the decision and the signatures of the judge or judges and the record clerk,
In the conclusion part of the provision, without repeating any word of the reason, each of the results of the request
If possible, the serial number of the debts and rights granted to the parties by the judgment given about one of them.
It should be shown one by one, clearly, without arousing suspicion or hesitation.
D) Law No. 5718 on International Private and Procedural Law
Enforcement and Recognition of Foreign Court and Arbitrator Decisions
Enforcement decision
ARTICLE 50- (1) It has been given from foreign courts in relation to civil cases and that state
In Turkey, the writs that have been finalized according to the laws
Turkish court authorized to be enforced
subject to the enforcement decision.
(2) Enforcement is also valid for the provisions related to personal rights in the criminal writs of foreign courts.
decision may be requested.
Enforcement prompt
ARTICLE 52- (1) Anyone who has a legal interest in the enforcement of the decision may request enforcement.
Enforcement request is made by petition. Samples are added to the petition as much as the number of the opposing party. In the petition below
matters include:
a) Names, surnames and addresses of those seeking enforcement, the other party and, if any, their legal representatives and proxies.
b) From which state court the judgment subject to enforcement was given, and the name of the court and the verdict.
date and number and summary of the provision.
c) If enforcement is requested about a part of the provision, which part it is.
Documents to be attached to the petition
Article 53- (1) The following documents are attached to the petition for enforcement:
a) The original of the foreign court decision that has been duly approved by the authorities of that country or the judicial body that issued the decision
Certified copy and certified translation by
b) Approved with a letter or document duly approved by the authorities of that country, showing that the verdict is finalized
translation.
Enforcement conditions
ARTICLE 54- (1) The competent court renders the enforcement decision under the following conditions:
a) An agreement on the basis of reciprocity between the Republic of Turkey and the state where the verdict was given.
or a law enabling the enforcement of writs issued by Turkish courts in that state.
existence of a provision or actual application.
b) The judgment has been given on a subject that does not fall under the exclusive jurisdiction of the Turkish courts, or
provided that the defendant objects, the verdict has not been issued by a state court that has jurisdiction, although it does not have a real relationship with the subject of the case or the parties.
c) The provision is not clearly contrary to public order.
ç) In accordance with the laws of that place, the person against whom enforcement is requested shall be duly submitted to the court that rendered the verdict.
has not been properly summoned or represented in that court, or has been unlawfully
in the absence or absence of this person, and this person has one of the above issues.
the fact that he did not object to the Turkish court against the enforcement request on the basis of
Notification and objection
ARTICLE 55- (1) The petition regarding the enforcement request is notified to the other party together with the hearing date.
The recognition and enforcement of uncontested accident decisions are also subject to the same provision. uncontested accident
Notification provision does not apply to decisions. The request was examined in accordance with the provisions of the simple trial procedure.
is decided.
(2) The other party only states that there are no enforcement conditions in accordance with the provisions of this section or that foreign
The court order has been partially or completely fulfilled or there is a reason preventing it from being executed.
may object, arguing that it has occurred.
Decision
ARTICLE 56- (1) A decision by the court to partially or completely enforce the decision or to reject the request.
can be given. This decision is written under the foreign court order and sealed by the judge.
is signed.
Fulfillment and appeal
ARTICLE 57- (1) Foreign writs that have been enforced are like the writs given by Turkish courts.
is done.
(2) The appeal of the decisions rendered regarding the acceptance or rejection of the enforcement request is subject to the general provisions.
The appeal stops execution.
E) Abrogated Law No. 2675 on International Private and Procedural Law
Enforcement decision
Article 34 – Issued from foreign courts in relation to civil cases and complied with the laws of that state
Enforcement in Turkey of writs that are finalized according to
subject to the enforcement decision.
Enforcement also applies to the provisions on personal rights in the criminal writs of foreign courts.
decision may be requested.
Enforcement prompt
Article 36 – Enforcement request is made by petition. Samples are added to the petition as much as the number of the opposing party. in the petition
the following items are included.
a) Names, surnames and addresses of those seeking enforcement, the other party and, if any, their legal representatives and attorneys,
b) From which state court the judgment subject to enforcement was given, and the name of the court and the verdict.
date and number and summary of the provision,
c) If enforcement is requested about a part of the provision, which part it is,
Documents to be attached to the petition
Article 37 – The following documents are attached to the enforcement petition:
a) The original and certified translation of the foreign court decision, duly approved by the authorities of that country,
b) Approved with a letter or document duly approved by the authorities of that country, showing that the verdict is finalized
translation.
Enforcement Conditions
Article 38 – The competent court gives the enforcement decision under the following conditions.
a) Agreement on the basis of reciprocity between the Republic of Turkey and the State where the decision was given, or
a provision of law that enables the enforcement of writs issued by Turkish courts in that state, or
find the actual application,
b) The judgment has been given on a subject that does not fall under the exclusive jurisdiction of the Turkish Courts,
c) The provision is not clearly contrary to public order,
d) In accordance with the laws of that place, the person against whom enforcement is requested shall be duly submitted to the court that rendered the verdict.
has not been properly summoned or represented in that court, or
by the way
unlawfully in absentia or
in his absence, and this person’s request for enforcement based on one of the above matters.
that he did not object to the Turkish court. (m.54/d)
Finally, 54/c of the Law No. 5718 on International Private and Procedural Law. in the article,
The provision that is the subject of combining the jurisprudence is not clearly contrary to the public order.
shown between the terms.
Against this clear provision, the enforcement of the foreign court decision in cases of clear violation of public order.
It is impossible to carry out and execute in Turkey.
So, at this point, the concept of public order, the determination of the violation of the provision to public order, the public
It is useful to examine the effects of enforcement order, public order and the existence of justification.
2/2-Public Order
2/2.1-Concept
Public order is based on a concrete event, the nature of which changes according to time and place, and the content of which is difficult to determine.
It is a concept that differs. Developing law despite scientific explanations and judicial decisions
rules that protect the basic structure and interests of society, although there is no definition even in their systems.
can be defined as a whole.
The intervention area of the concept of public order is extremely wide and open to interpretation. Your judgment is unjustified
Acting from the concept of public order due to its
by examining the consequences of the procedure, the applicable law and the execution of the verdict,
Saying that the decision will not be enforceable as it is found to be contrary to public order will have a very serious result.
will create.
The situations that will necessitate the violation of the Turkish public order are mostly in the case of a clear violation of a mandatory provision.
will be considered. However, in case of violation of every mandatory provision or in case of a violation of every mandatory provision,
It is not possible to say that the foreign decision is contrary to the Turkish public order.
So, the framework of public order in domestic law is based on the basic values of Turkish law, Turkish general etiquette.
and morality, the basic understanding of justice on which Turkish laws are based,
general politics, fundamental rights and freedoms in the Constitution, common international
principles and private law based on the principle of good faith, civilized communities jointly
to the principles of law, which are the expression of the moral principles and sense of justice they adopt,
in violation of the level of civilization, political and economic regime, human rights and freedoms.
can be drawn.
In domestic law, public order is derived from public law and private law that the parties have to comply with.
It must be understood as the rules that arise only on which the parties cannot dispose freely.
2/2.2- Enforcement effect of public order
Having final judgment, conclusive evidence and enforcement power outside the country where the court decisions were made,
establishing and creating economic relations brought by personal relations and commercial life in the international community
and the undisputed court decision for the resolution of the disputes, as well as the foreign
requires the recognition and enforcement of the writ.
There is no doubt that such a necessity brings the two dominations against each other. The first of these is that each state
the need to protect its sovereignty and national interests, and the second is the protection of international interests.
requirements and the universal declaration of human rights of the rule of respect for the rights of persons and the protection of these rights.
is to be protected and protected.
With enforcement, the sovereign disposition of the foreign country, activity, execution in the country of another independent state.
recognition of feasibility.
The state that recognizes and enforces foreign court decisions, in principle,
relinquishes its authority to resolve a conflict that it is authorized to resolve, almost
the abolition of the sovereign power of disposition by another state by exercising its jurisdiction.
allows removal.
In particular, as a result of enforcement, the decision is made by the executive organs of the state in which it was executed, by a foreign
The fact that they will act by order of the court will make enforcement much more effective and the content will be examined.
It will also raise the question of feasibility.
Which criteria will emerge as a result of the uncertain nature of public order?
accepting that the matter will arise with the justification given in the foreign decision and the judgment taken.
will be required. Inspecting whether the foreign court decision is contrary to Turkish public order
During this period, the prohibition of examining the content comes into effect, and this prohibition can be removed with discretion.
It is clear that it cannot be removed.
According to the system adopted in the International Private and Procedural Law, by the enforcement judge,
Foreign court decision cannot be examined on the merits and its legality cannot be checked.
In such cases, the enforcement judge has the right to examine the content of the verdict, except for the enforcement conditions.
has no authority. Accepting the opposite, finding the enforcement judge, the upper court task in himself
leads to a conclusion.
2/2.3- Determining the violation of the provision against public order
Law No. 5718 on International Private and Procedural Law
Article 54/c of the
is not clearly contrary to public order, is not counted among the conditions of enforcement.
Accordingly, the law applied in issuing the foreign court decision and according to which criteria
is not implemented, but the consequences that will occur if the foreign decision is executed in Turkey.
It should be investigated whether it will violate public order.
From the expression in the aforementioned article that the provision is not clearly contrary to public order, foreigner
The incompatibility of the law applied to the merits of the court decision with the Turkish public order cannot be examined,
only if the legal consequences resulting from the enforcement of the judgment are contrary to public order
it must be concluded that the enforcement of the foreign court decision will be rejected.
The fact that the law applied to the merits is different in Turkish Law or that the mandatory rules of Turkish Law
The enforcement of the foreign decision cannot be rejected for reasons such as being contrary to the law. Here it is essential to
The criterion is that the foreign writ is contrary to the provisions of one or more laws in Turkish Law.
rather, it is based on the basic values of Turkish Law, the Turkish general understanding of morals and morals.
the basic understanding of justice and legal policy on which it is based, the fundamental rights and freedoms in the Constitution, common and accepted legal principles valid in the international arena, bilateral agreements, advanced
to the understanding of morality and justice that societies adopt, to the level of civilization, to the level of political and economic
You should look at the regime.
2/2.4- Existence of public order and justification
In addition to making the law superior, reinforcing the trust in the judiciary, impartial and open trial,
It is possible to write the decisions in a satisfactory and convincing manner in accordance with the stage of the trial.
Unless the law is applied equally to everyone in the same situation, its glorification is impossible.
It is clear that the justification is related to public order. the rule of justification with the public interest, benefit and order.
It is the values whose control is made possible that unite them at the same intersection.
In democratic states of law, the justification does not only justify a provision, but also
with the interest of reality, the person, the society and the public in the personality of the judgment, the judge and his effectiveness.
assumes a role that erodes their habits by controlling them. The reason is binding. binding judgment
differs according to the intended purpose. The justification should be inclusive and pluralistic.
Failure to evaluate the claims and facts put forward by the parties is a violation of the right of defense.
In this case, it should be noted that the justification also comes into play. Because the court decisions
is the result of taking into account the claims and defenses put forward by the parties. your decision
141/3 of the Constitution where these issues mentioned in the justification are the subject of discussion. with the provision of this
Civil Procedures No. 1086, where the evaluation is mandatory and the abolished
It is also clear in Articles 388 of the Law No. 6100 and Articles 297 and 298 of the Code of Civil Procedure.
it is obvious that he was committed.
Approach of Private International Law to the justification of foreign court decisions Civil Procedure Law
is not the same as The justification for the decision is subject to the procedural laws of the state to which the judge making the decision belongs.
As a rule, it will not create a contradiction if it constitutes a violation of public order.
Violation of the fundamental right to defense and the unjustified decision are different issues.
Although it would be contrary to the public order in the domestic law that the foreign decision was not given,
Its occurrence will not constitute a violation of public order as a sole and sole cause.
2/3- Evaluation
In the abrogated Law No. 2675 and the Law No. 5718 repealing this Law, a foreign
that the judgments given by the court in relation to civil cases can be enforced,
it has also been accepted that the provisions of the penal writs on personal rights are also subject to enforcement.
In this case, all kinds of foreign court decisions regarding substantive legal claims,
are decisions that can be enforced.
A court decision of a court decision that has been given subject to the procedural law of a foreign state
whether it is in the nature or not and the conditions for finalization are, of course, exclusively in the country where the decision was made.
The procedure is determined and determined according to the law.
As it is known, this situation has been accepted both in the international arena and in the implementation of the Turkish Court.
subject to the lex fori principle in procedural law, in other words, to the court’s own procedural law.
is a requirement of the principle.
Just as a foreign state’s own procedural law does not accept a court order issued by the Turkish Court.
If it cannot be considered as an executive order or an order according to the rules of the foreign
determining the nature of a court decision according to Turkish procedural law.
it’s out of the question.
As a matter of fact, in the Law No. 5718 on International Private and Procedural Law, 54.
One of the conditions regarding the procedural law stipulated in the article, the procedure to which the court giving the decision is subject.
from the principle that it can be evaluated according to the law
obviously moving.
In this respect, a court decision accepted as a verdict in accordance with its own procedural law provisions.
By analogy with a regulation in the Turkish Enforcement Law, it is a warning to pay a certain amount of money.
It is impossible to qualify it as an order or payment order containing So, an enforceable foreign
If the court order carries the conditions listed as limited in the Law No. 5718, the enforcement decision
must be given.
One of the conditions sought for enforcement concerns the interference of Turkish public order. Law No. 5718
According to Article 54/c, in order for a foreign court decision to be enforceable, this court decision must be
It is essential that it does not contain a provision that may require the intervention of the Turkish public order.
Here, the only possibility to obtain the rejection of the enforcement of the foreign court decision is the foreign court.
the provision or clauses of the provisions are clearly contrary to the Turkish public order. In terms of this condition
The justification in the foreign writ does not have the power to affect the enforcement of the writ.
It should be emphasized that the foreign court decision of the enforcement judge in terms of substantive law
does not have the authority to examine and evaluate its accuracy. Within the framework of this prohibition, the enforcement judge
It is not possible to examine and evaluate a justification present in the writ.
In other words, the presence or absence of a justification in the decision
It is not important in determining the violation of the order. Foreign court whose enforcement is requested
the presence or absence of a justification in the meaning of the Turkish Procedural Law in the Turkish Procedural Law.
It is neither effective nor necessary for enforcement in terms of interference with public order. Acceptance of the contrary
re-trial will result, as well as the court that took the foreign writ.
An undesirable situation will arise, such as becoming an audit and inspection body.
The fact that the party against whom the decision was made has not been given the opportunity to use the right of defense is also evident in the Turkish Public
It is a situation that requires the intervention of the system. In principle, each court has its own procedural provisions.
implements (Lex Fori principle). For this reason, the procedure applied by the foreign court is not the Turkish procedure.
The fact that it is different from the Turkish public order is not a justification for the intervention of the Turkish public order.
The same principle is also valid in terms of the rules of proof law applied in foreign court judgments.
However, if the foreign court decision is in a state of law, according to the Turkish legal understanding,
principles of fair trial, which are different from a procedural law order and the rules of proof law.
If it is given subject to an infringing procedure, it is necessary to intervene in Turkish public order.
The refusal of enforcement may be enforced, considering that it is In particular, the parties themselves sufficiently
enforcement of a foreign court order issued in a procedural system that does not allow defense
rejection may occur.
The Procedure used by the Foreign Court in the case also requires the intervention of the Turkish public order.
it is not a method.
The Constitution of the Republic of Turkey All decisions of all courts are written with justification.
adopted the principle. (Art. 141/3) Trial of hearings in cases before Turkish Courts
It is included in the provision of article 141, which determines the rules of law, which orders the presence of justifications in all kinds of decisions.
It is impossible to say that foreign courts are also included in the concept of all courts.
The principles laid down in Article 141 of the Constitution regarding the trial procedure are exclusively Turkish.
It is a clear and indisputable determination that will be valid for the courts.
As is known, the reason for determining the form and material content of the Turkish Code of Civil Procedure is a justification in the sense of Turkish Procedural Law. Demanding or seeking a justification of this content in a foreign court decision will certainly not be compatible with the principle of lex fory.
First of all, a justification in this content is not the Constitution, but the Turkish Code of Civil Procedure.
is a reason. The form and material elements listed in the old article 388 and new article 297 of the Turkish Procedural Code
waiting and seeking for it to be included in a foreign court decision, as a result of which one of these elements
or, in the absence of several, considering it, a foreign court suitable for enforcement
means to prevent the enforcement of the writ. This kind of regulation is a part of International Procedural Law and
It is a form of view and understanding that Turkish Enforcement Law cannot accept.
In accordance with the principle of lex fori, which is adopted in practice and according to scientific views, with its form and material content.
justification is determined by the law of each country itself and by the laws of other countries.
It is a necessary and necessary concept to be accepted as a justification. Despite this, the Turkish
The rule that court decisions are justified may require the intervention of the Turkish Public Order.
It cannot be considered as an imperative provision.
On the other hand, the constitutional rule, which states that court decisions must be written with reasons,
There is no doubt that it is imperative for the decisions given by the courts.
But here, every imperative rule, the Constitution
Even if there is a rule, there is a rule regarding fundamental rights and freedoms.
Unless there is a rule, the Turkish Public Order in the implementation and consideration of foreign laws.
to remember that it is a well-known principle of public order that
must.
Turkish enforcement law, the provisions of foreign court decisions clearly violate the Turkish public order.
He is concerned with whether or not he will. Moreover, it is up to the enforcement judge to examine and consider the reasoning of the decision.
It is not even given the duty and authority to take it. Foreign court decision, procedural law of the country in which it was issued
rule is subject to the lex fory rule. Enforcement conditions, how and to what extent these rules are enforced
He has shown that he will prevent it separately.
It is seen that in the foreign court decision, the Turkish Procedural Law has just entered into force.
A justification within the meaning of Article 297 of the Code of Civil Procedure No. 6100
is not a phenomenon that requires the intervention of the Turkish public order alone.
Briefly; In principle, each court applies its own national procedural provisions, so foreign
The fact that the procedure applied by the court is different from the Turkish law is for the intervention of public order.
is not a reason. The same principle applies to the rules of the law of proof applied in the foreign court decision.
also applies to Exclusively created and finalized without giving the right to be heard
an unjustified foreign court decision is found to be contrary to Turkish public order just for this reason.
The rejection of the enforcement request by stating the same will be contrary to the principle of lex fori.
In other words, in accordance with its own procedural law provisions, in the sense of Turkish procedural law, its justification
The lack of justification of foreign court decisions that do not exist is an obstacle to enforcement just for this reason.
cannot be cited as a reason. However, the decision is based on the basic values of Turkish Law, Turkish general morality and
the understanding of morality, the basic understanding of justice, the fundamental rights and freedoms in the Constitution, the international
the principles valid in the field, the rules of goodwill regarding private law, the political
regime, the evaluation that will shake the foundation of the economic structure of the society, the basic human
Since violations of their rights, sense of justice, and public order will be accepted, foreigner
With the application of the judgment clause of the court order, the foreign court that will have such consequences
enforcement of its decisions is not possible.
VI-Conclusion
Foreign court finalized that there is no pure reason for foreign court decisions
that it will not prevent the enforcement of the decision and that this issue is subject to International Private Law and Procedure No. 5718.
It will not be considered as a clear violation of public order within the meaning of Article 54/c of the Law on the Law of the Law,
In the first meeting held on 10.02.2012, it was decided with a majority of votes exceeding two-thirds.
