In practice, debtors sell their assets in order to prevent lien on their existing assets, and transfer them colludingly by showing it as a sale. The criminal actions of the debtors are not limited to these, and some debtors have agreed with third parties and owed debts to them, although they are not actually indebted, usually sign a promissory note, do not object to the enforcement proceedings initiated against them due to unrealistic debts, and subsequently lien on their assets before the real creditors. It is frequently encountered that real creditors exhibit attitudes and behaviors that will prevent them from taking their receivables.
In this regard, paragraph 1 of Article 331 of the Execution and Bankruptcy Law No. 2004: “After the request for enforcement through attachment or within two years before this request, the debtor; If he/she proves that he/she has received a certificate of insolvency against him or that the creditor has not received his/her receivable, if he/she reduces his/her assets by removing, destroying or depreciating his/her property or some of them, in real or concealed form, by colluding, or by confessing non-original debts, in order to harm his creditor, shall be punished with imprisonment from six months to three years and a judicial fine up to a thousand days.” has the ruling.
With Article 331 of the Enforcement and Bankruptcy Law, the legislator aimed to protect the rights of creditors arising from the follow-up law by foreseeing imprisonment and judicial fines for such actions and behaviors of debtors.
The fact that the debtor has acted with the aim of causing damage to his creditor is one of the necessary conditions for the crime to occur. Therefore, the debtor must be in bad faith in order to be punished under Article 331. In addition, it is the debtor’s removal or destruction of all or part of his property, or depreciation of these goods, transferring them to someone else in real or concealed form by collusion, or committing one of the acts of diminishing his assets by acknowledging unfounded debts. The fact that the debtor has apparently disposed of his property(s) also means a reduction in its existence.
The fact that the debtor disposes of or destroys his property at a price far below its real value, transfers his assets to someone else through a collusive transaction, or increases his liability by creating debts that do not exist will also result in a decrease in the asset. Article 37 of the Turkish Penal Code, titled “Participation in Crime”, states, “Each of the persons who commit the act together in the legal definition of the crime shall be liable as the perpetrator.” Actions to encourage committing a crime or to strengthen the decision to commit a crime or to promise to help after the crime has been committed, to provide guidance on how to commit the crime or to provide the tools used in committing the crime, to facilitate the execution of the crime by helping before or during the committing of the crime are also criminalized in accordance with Article 39 of the TPC. Although the person responsible for the crime regulated in article 331/1 of the EBL is the debtor, those who contributed to the commission of the crime may be punished in accordance with the provisions of the aforementioned provisions of the TCK.
For example, those who initiate enforcement proceedings against the debtor by issuing collusive promissory notes, contribute to the debtor’s collusive transactions and help increase the debtor’s liability, will be punished under the provisions of participation in the crime. If the debtor is a legal person, the responsibility belongs to real persons authorized to represent and administer the legal entity in accordance with Article 345, since legal persons do not have criminal capacity.
It should not be forgotten that in order for the crime to occur, the debtor must have carried out the acts that reduce his presence within a certain period of time. In the text of the article, this issue is stated as: “After the request for follow-up through foreclosure or within two years before this request”. However, in Article 347 of the Execution and Bankruptcy Law, titled “Complaint period”, “The right to complain about the acts in this Chapter expires after three months from the date of learning of the act, and in any case one year from the date of the act.” contains the provision. While Article 331 considers the transactions within 2 years retroactively to be criminal, the declaration that the right to complain will be waived within a 1-year period with Article 347 creates a contradiction between both articles of law.
For this reason, although it is stated in article 331 that transactions within a period of 2 years backwards before the request for enforcement through attachment may be subject to complaint, the debtor may be penalized for actions performed within a maximum period of one year due to the limitation of the right to complain. Since the right to complain will have disappeared due to acts older than one year, the debtor will not be liable.
another shart the creditor must incur a loss. The burden of proving the damage is on the creditor. The creditor is obliged to prove that he has not been able to collect his debt in the enforcement proceedings he initiated against the debtor. In practice, the certificate of insolvency obtained from the execution file is used as a means of proof. There are two types of insolvency certificates, temporary and final. Although it is not clearly stated in the law, it is accepted in the doctrine that the document of insolvency sought by the law is the definitive document of insolvency. In order for the creditor to obtain a final insolvency document from the execution file, he must certify that the debtor has no movable or real estate, and that the debtor has no rights or receivables from third parties.
