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
ORIGIN – CAUSED BY THE SERVICE AGREEMENT
FORMATION OF AN EMPLOYMENT TRIBUNAL IN DISPUTES
ABSTRACT: The basis of the ban on competition in the subject of the lawsuit is 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 of the deputy plaintiff for examination, the Supreme Court 9.25.01.2010 Day of the Legal Department
and with the 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 on 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 entitled to 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, the aforementioned 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 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 by 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 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 under 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 duty 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 the 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 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
it was enacted; 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 contains 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 be noted immediately that it is the loyalty debt of the employee not to compete with the employer during the continuation of the employment contract
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 employee 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: Special Courses on the Law of Obligations
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).
It is impossible to assume that every service contract will necessarily concern a commercial enterprise.
Therefore, the prohibition of competition contained in the service contract made by the person at the artisan level
it is meaningless that the case arising from the violation is also considered an absolute commercial case in accordance with this provision. Such a
contractual disputes are not related to self-trading life, as well as their resolution is a separate specialty
(Sabih, Arkan: Commercial Business Law, 9.Printing, Banking And Commercial Law Research
Institute 2005, p.94-95).
348 of the Code of Obligations.the prohibition of competition, which is regulated in the article, gives rise to a principal obligation
there is no contract; It creates a financial obligation depending on the employment contract. From business relations
the basis for the regulation of the ban on competition arising is the business relationship.
Rules of material law of a special nature for the purpose of protecting the employee, how does the state regulate labor relations
if it is necessary to give up, it can also be used in the resolution of labor disputes as a legal dispute
by leaving the judiciary, it is easy, fast and specific to Labor Law so as to serve the purpose of this law
the expert who judges by the rules of economic procedure must leave it to a special (specific) judge. Here
this is necessary, as in most countries, business cases in Turkey, specialized in this field, in special courts;
in employment courts and according to a procedure different from the general judicial procedures, i.e. a job
expresses the existence and necessity of the judiciary (Hamdi, Mollamahmutoglu: Labor Law, Turhan Publications
2004, p.103).
According to the decision of the Supreme Court Case Law Unification Board dated 29.06.1960, numbered 1960/13 and 1960/15;
courts have special knowledge on these issues of cases arising from business dealings
it has been established for the purpose of being heard in the courts; with persons deemed to be workers (as amended by law 2.
except for those who work in jobs that are excluded from paragraphs C, D and E of the Article) from the employment contract between the employer Dec
or legal disputes arising from all kinds of claims based on the labor code in these courts
shall be settled.
In accordance with the Labor Courts Law No. 5521 issued in this context and entered into force in 1950;
in order for a dispute to be heard in the employment courts, it is necessary to Decisively conclude an employment contract between the persons considered to be employees and the employer
any legal dispute arising from the contract or any claims based on the labor code
it must be found (decision of the General Assembly of the Supreme Court of Law dated 05.02.2003 and numbered 2003/82-65).
In this regard, the basis of the ban on competition, which is the subject of the lawsuit, is the
it is caused by loyalty debt and is responsible for disputes arising from the contract of service
the court is an employment tribunal.
On the other hand, labor disputes are legal disputes of a special nature. 1 of Law No. 5521.
in the article, labor disputes that fall within the scope of the duties of labor courts are considered to be workers in accordance with the labor code
any rights between persons and the employer or their Decoys based on the employment contract or the Labor Code
legal disputes arising from their claims are stated as >. Thus, the task of the labor courts is
as legal disputes falling within the field of labor disputes, their parties and subject matter are determined by law;
that is, there are disputes of a certain nature, and when the rules of duty relate to public order, their content is arbitrary
they are disputes that cannot be filled. That is why the labor courts, as a civil court, work
administrative and criminal disputes, even if they are arising from a contract or Labor Law, are naturally
as it cannot be looked at, the relationship between the workers who are outside the scope of the Labor Code and the employers who employ them Dec
he will also not be able to look at disputes, even if they arise from an employment contract. This is the last kind of
disputes, the parties of which are the employee and the employer, are referred to as labor disputes, even if the source is an employment contract
cases that cannot be qualified and therefore are the subject of these disputes as business cases
cannot be evaluated; in general, they are involved in legal disputes and civil cases (Hamdi,
Mollamahmutoglu: Labor Law, Turhan Publications 2004, p.104-105).
since the Labor Courts Law No. 5521 was issued while the Labor Code No. 3008 was in force
1.the provision in the article is defined today according to the Labor Code No. 4857 and 4. the provisions of the article
they should be understood as workers who are excluded. the expression contained in Law No. 5521 Labor Code
it should be interpreted as the employee covered by it. In this case, Exceptions to the Labor Code No. 4857>
titled 4.in the cases to be filed by the persons listed in the article and the employees in the jobs specified in the article, the
the general courts are in charge, not the courts.
As a matter of fact, the explanations made and the principles set forth above in relation to the court charged with the law
22.09.2008 Day of the General Assembly and E:2008/9-517 , K: 566 was also adopted in the same way.
As a result, the Labor Code is based on Articles 348 and its continuation of the Code of Obligations No. 818
within the scope of the criminal requirement filed by the person deemed to be a worker for violation of the competition prohibition agreement,
it is accepted that labor courts are in charge of cases related to collection, and the preliminary problem is with the majority of votes
after overcoming it, the study of the merits of the work was started.
In the study of the merits of the work;
According to the mutual claims and defenses of the parties, the minutes and evidence in the file, in the decision to overturn
according to the mandatory reasons described, the Law is also adopted by the General Assembly of the Private Circle of corruption
while it is necessary to comply with his decision, it is contrary to the procedure and the law to resist the previous decision. Therefore, do not resist
his decision must be overturned.
Conclusion: With the acceptance of the appeals of the plaintiff’s deputy, the decision to resist the decision of the Special Chamber to overturn the decision
and HUMK for the reasons shown above. nun 429.DETERIORATION as required by the article,
it was decided unanimously on 21.09.2011.
