T.C. General Assembly of the Supreme Court of Law No: 2011/9-508
Decision No:2011/545
Date of Decision: 21.09.2011
PROMPT COLLECTION OF A CRIMINAL REQUIREMENT – CONTRARY TO THE PROHIBITION OF COMPETITION
AN ALLEGATION OF CONDUCT IS A STATEMENT THAT THE BASIS OF THE BAN ON COMPETITION IS THE EMPLOYEE’S
FROM THE LOYALTY DEBT ARISING FROM THE CONTRACT OF SERVICE
- ARISING FROM THE SERVICE AGREEMENT
FORMATION OF AN EMPLOYMENT TRIBUNAL IN DISPUTES
ABSTRACT: The basis of the ban on competition, which is the subject of the lawsuit, is the loyalty arising from the employee’s service contract
due to its debt, the court charged with disputes arising from the contract of service is working
the court is.
(1475 P. K. m. 14) (4857 p. K. m. 4, 120) (818 Pp. K. m. 159, 161, 348, 349, 350, 351, 352) (6762 P.
K. m. 4, 5) (5521 P. K. m. 1) (YIBK 29.06.1960 T. 1960/13 E. 1960/15 K.) (YHGK 05.02.2003 T.
2003/9-82 E. 2003/65 K.) (YHGK 22.09.2008 T. 2008/9-517 E. 2008/566 K.)
Case: At the end of the trial between the parties for dec case; Bakırköy 9.Work
The decision of the Court on the dismissal of the case dated 09.01.2008 and numbered 2007/76 – 2008/1
upon request by the deputy plaintiff to be examined, the Court of Cassation 9.25.01.2010 Day of the Legal Department
and by decree No. 2008/14902 – 2010/1271;
(…1- According to the legal reasons on which the decision is based on the evidence collected from the articles in the file,
the plaintiff’s appeals that fall outside the scope of the following paragraph are not in place.
2- The plaintiff company is a company operating in the same subject in which the defendant employee leaves without notice while working as
another company has requested compensation for whistleblowing and punitive damages due to its work.
After the defendant worker stated that he was married and therefore could not qualify for notice compensation, the force
he stated that an imposed condition would not make a provision due to my presence in the situation.
The case was dismissed by the court, and the decision was appealed by the plaintiff.
If the woman terminates the employment contract at her own request within one year from the date of marriage
since he will receive severance pay (Article of Law No. 4857. No. 1475, which was left in force with 120
14 of the Law.article 1) The plaintiff cannot be awarded notice compensation. The decision is correct with this aspect.
The criminal requirement attached to the prohibition of competition is a separate legal concept. In the criminal case related to the ban on competition
even if there is no damage, it is possible that the mentioned compensation may be requested in case of violation of the contract.
The normative basis is BK m.159/II dir. Also BK m.351/II prohibition of competition by paying the workers’ criminal requirement with
he can get rid of his contract. However, here is BK m.Consider the discount rules in 161/III
it is kept. Reciprocity is not sought.
In the concrete case, the defendant employee started working in the company doing business on the same subject as the plaintiff company. Sale
it is inevitable that there will be a foundation as a representative. In the employment contract, the period of six months from the moment of departure is the same
he won’t be able to work at another job. Nonconformity is non-negotiable.
The work to be done by the court is subject to the criminal requirement.161. evaluate and decide according to the result
is to give.
It is wrong to make a decision in writing…)
at the end of the re-trial, the grounds are overturned and the file is returned to its place,
the previous decision was resisted by the court.
After it is understood that the decision to resist has been appealed within the period of examination by the General Assembly of the Law and
after reading the papers in the file, they were discussed as necessary:
Decision: The case is contrary to the prohibition of competition regulated in Articles 348 and further of the Code of Obligations
based on the alleged behavior, the collection of the criminal requirement agreed in the contract is related to the request.
The decision of the Local Court on the dismissal of the case was made by the Special Department on the appeal of the plaintiff’s deputy,
the sentence, the text of which is taken in the same way as above, has been violated in terms of the criminal requirement; in the previous decision by the court
it has been resisted. The decision was appealed by the acting plaintiff.
A dispute that has come before the General Assembly of the Law through resistance;
whether the punitive damages related to the prohibition of competition record should be ruled on or not, at the point of
it is being collected.
During the meeting at the General Assembly of the Law, before proceeding to the merits of the work, the legal
cases arising from Articles 348 and its continuation of the Code of Obligations, which constitute the basis, Turkish
4 Of the Commercial Code.according to the nature of the absolute commercial case listed in the article, it is the same
5 Of the Law.whether the task of considering the case at hand, in accordance with the article, belongs to the commercial court
the issue has been considered as a preliminary problem and discussed.
As for the consideration of this preliminary question;
article 10 of the Code of Obligations No. 818.Organized under the title of Babinda 348 and continued
its articles contain provisions on competition.
4 Of the Turkish Commercial Code.article 5 of the same Law has a provision in it.and in the article,
it is stated that the task of considering commercial cases belongs to the commercial courts.
On the other hand, Labor Courts Law No. 5521 No. 1.according to the Labor Code;
all kinds of rights between the considered persons and employers based on the employment contract or the Labor Dec
it is stated that civil cases arising from their claims will be considered in employment tribunals.
In accordance with the provisions of the aforementioned Law, first of all, Articles 348 and the continuation of the Code of Obligations
it is necessary to determine the court charged with considering the cases arising from it.
Business and working life in Turkish law was first enacted in 1924 and is related to the week break
Obligations No. 818 regulated by Law and entered into force in 1926 after this Law
Detailed regulation has been introduced with the Law.
Due to the changes that have occurred in working life and the special needs of workers, the Constitution
as a requirement of the principle of the social state, the legislator is increasingly entering this field
as a result of the need for intervention, the Labor Code No. 931 was first issued in 1967
law No. 1475 in 1971 on the cancellation of this Law by the Constitutional Court and
finally, the Labor Code No. 4857 came into force in 2003.
None of these Laws of a special nature contain provisions of the Code of Obligations on work and working life
has not been repealed, on the contrary, in order not to violate the provisions of the Labor Code
it will be applied to disputes arising and service contracts that are outside the scope of Labor Laws
this issue was clearly emphasized by the legislator.
The loyalty debt arising from the establishment of the employment contract, the protection and observance of the employer’s interests by the employee
it’s his debt. If it is an obligation not to compete, which is one of the consequences of the employment contract; loyalty of the employee to the employer
it refers to the negative side of the debt.
It should immediately be noted that during the continuation of the employment contract, the employee owes loyalty to the fact that he does not compete with the employer
it is an obligation contained in it. In turn, the parties agree that while the business relationship continues, the contract
a provision is made in the employment contract that the employee will not compete after the end, or this
they may decide to conclude a separate agreement (competition prohibition agreement) on the subject. The employment contract is terminated
after the termination of the employee’s obligation not to compete with the employer, but such an obligation is contractually
if it is agreed, it is in question (Sarper, Surek: Labor Law, Beta Publications, 2005,
s.277).
Since the employee is in a weak position in the service contract compared to the other party (the business owner), the law, the business
in order to prevent the owner from oppressing the worker by providing unfair benefits to the service contract
he felt the need to regulate the provisions on the ban on competition in a special way.
The provisions of Regulation 348-352 of the Code of Obligations are only implied in the service contract
they can be applied to non-competition contracts concluded (Cevdet, Yavuz: Courses on the Law of Obligations, Special
Provisions, Beta Publications, 2006, p.276).
The limitations written in this article, which are intended to protect the employee, in this case apply to other contracts
they cannot be applied (Hifzi Veldet Velideoglu: Commentary on the Turkish Code of Obligations, Supreme Court Publications 1987,
s.561).
