Region Limitation and Time Limitation for the Implementation of the Decision
In the Decision, it was clearly decided to stop the proceedings and proceedings “which are carried out throughout the country”.
As of 20 March 2020, which is the date of publication and entry into force of the decision, 30 April 2020
It has been decided that Article 330 of the Law No. 2004 will enter into force until
Although it is stated in Article 330 of the Law No. 2004 that only “enforcement proceedings” will cease,
In the Decision, detailed arrangements were made on the subject, and bankruptcy proceedings and precautionary attachments were made, apart from enforcement proceedings.
With the Decision, (i) Execution Proceedings and Bankruptcy Proceedings, (ii) Party Proceedings, (iii) New Execution
and bankruptcy proceedings are not taken, (iv) Precautionary attachment decisions are not executed and executed,
given.
I. New Enforcement Proceedings and Bankruptcy Proceedings
As clearly stated in the Decision, enforcement and bankruptcy between 22.03.2020 and 30.04.2020
It is not legally possible to take new enforcement and bankruptcy proceedings by the directorates. So no real or
legal person cannot initiate enforcement and bankruptcy proceedings against another real or legal person.
ii. Parties and Follow-up Transactions
It is important to determine whether the transactions made in enforcement law are execution or party follow-up. For
The legislator has attributed different results to the enforcement proceedings. The first of these results is with the execution follow-up process.
is the expiry of the statute of limitations; The second result is the execution proceedings, as a rule, in cases of vacation-delivery.
is not done. For this reason, transactions that do not qualify as enforcement proceedings, such as a follow-up request, may be suspended or suspended.
1 For this reason, “Holiday in Extraordinary Circumstances” of the Execution and Bankruptcy Law No. 2004
In terms of the implementation of Article 330 titled, it will be important to determine the enforcement proceedings.
The elements of the execution proceedings are:
• Made by the executive body,
• Action against the debtor
• Ensuring the progress of the enforced execution
evaluated under three headings.
“The power to use force in this framework, which ensures the fulfillment of the right arising from the material law
“Bodies with jurisdiction and whose powers are determined by law” are defined as the enforced executive body.2
Executive bodies are divided into main and auxiliary executive bodies. Established for enforcement purposes only
organs are the main executive organs. These are the enforcement office, the enforcement court and the enforcement-bankruptcy of the Court of Cassation.
authorized law offices. The organs that take care of enforcement matters other than their main duties, on the other hand, are sub-executive bodies.
are organs.
In order for a transaction to be accepted as an enforcement proceeding, the enforcement office, enforcement court or general
must be done by the courts. For this reason, the execution proceedings of the creditor, debtor or third parties
transactions cannot be considered as “execution proceedings”.
In order for the follow-up process to be qualified as an enforcement action, it must be done against the “debtor”. Executive
The actions taken by the organs of the executive body against the creditor or third parties are not enforcement proceedings. In addition,
Transactions regarding the internal functioning of executive bodies cannot be called enforcement proceedings. Forced execution
the person initiating the claim and seeking to obtain his claim is the creditor, and the other party is the debtor. debtor, creditor
is a concept. The person designated as “debtor” by the creditor in the follow-up request acquires the title of debtor and
Follow-up proceedings are carried out against this debtor. In this sense, the principle of formal party in enforcement law
valid; The person specified by the creditor in the follow-up request is considered as a party.
In the enforcement proceedings, third parties other than the creditor and debtor may also take part, or during the proceedings, third parties may be involved.
interests may be violated. (For example; 3rd party may have established a pledge for the receivable subject to follow-up (art.
146/I, 149/I, 149b/I) or the property and rights of third parties may be seized with the thought that they belong to the debtor (art.
89, 94, 96-99, 228).) Although third parties are not directly related to the execution proceeding or the outcome of the proceeding, the execution
plays an active role in the follow-up. However, this is due to the fact that third parties are one of the parties to the enforcement proceedings.
does not result. Third parties are only parties to complaints and lawsuits against them. It
For this reason, transactions made against third parties do not fulfill the condition of “to be made against the debtor”.
It cannot be considered as a follow-up process.
If there is discretionary follow-up friendship between the debtors, the execution proceedings of the transaction made by the executive bodies
It does not have to be made against all debtors in order to qualify as debtors. Only relevant to the transaction
Against the debtor, it is sufficient to qualify as an enforcement proceeding. Because in voluntary follow-up friendship
followers can act independently of each other.
Enforcement follow-up must be of a nature to ensure the progress of the enforced execution. These transactions send the creditor to the target.
approximation processes. Enforcement proceedings are for the purpose of collecting the receivable of the creditor. Order of payment,
Notification of the payment order, removal of objection, attachment proceedings, giving time to the debtor to the enforcement proceedings
send an example
can be sterilized. However, the distribution of money (art. 138 et al.) is not an enforcement proceeding.
As stated in the Decision, only “party follow-up proceedings” were suspended. technically in the decision
In accordance with the Execution and Bankruptcy Law No. 2004, the characterization of the unused party follow-up process
We are of the opinion that it should be considered as ‘transactions’. For this reason, non-executive enforcement proceedings
We are of the opinion that there is no harm in continuing the proceedings.
