The Empty Bill Signed by The Borrower, The Divorced His Wife Passes Into The Hands Of And This Spouse Initiates Enforcement Proceedings
GENERAL ASSEMBLY OF LAW
DECISION NO: 2018/464
DECISION DATE: 14.03.2018
ABSTRACT: The plaintiff debtor does not comply with the definition of ticari deceit üzere if the claimant’s düzenlen bill is issued to be the guarantee of another commercial relationship but the defendant seizes the bond upon receipt of the bond if the related person does not accept this guarantee; no evidence can be applied to the evidence – when the contract theory and the principle of trust are taken into consideration, the defendant can only prove the claim expressed by the defendant in his favor in contradiction with the agreement between the empty bond deposited to him or her for any reason, and it can be proved by the written evidence. in the case that the decision on the suspension of the pronouncement of the judgment (HAGB) is not considered a conviction and will not bind the judge of the judiciary – the local court’s claims as geri deceit m and it is not appropriate for him to make a decision by applying for evidence of his evidence.
At the end of the trial of the negative fixation case between the parties, the decision of the 2nd Commercial Court of First Instance was given on 17.06.2013 day and 2011/701 E., 2013/242 K. regarding the acceptance of the case, the defendant M.A.Y. with the decision of the Supreme Court of Appeals of the Court of Appeals of 17.04.2014 days and 2014/3592 E.
The deputy attorney, the client’s ex-wife defendant, his client signed a blank as bond to give another person during the marriage seizure by over 150.000,00 TL by filling in the 18. 18. Director of the Directorate of Execution file no. as a result of the determination of the debtor, the cancellation of enforcement proceedings and 40% of the decision on malicious intentions to claim compensation.
The defendant’s deputy, they did not accept the lawsuit filed, the parties divorced in 2005 despite the fact that the client in the workplace of the plaintiff until 2008, the case is prepared to be given as a plaque in the case of the claim that the plaintiff should be written evidence of the claim, denial of the case against the plaintiff with the rejection of the case against the claimant. he wanted.
The court, the plaintiff’s allegations of cheating witnesses for the witnessed, listened to the witnesses witnessed on the basis of the tithe of the witnesses, the plaintiff witnesses TG, L.Ç. and D.Ö. ‘s plaintiff to the companies that do business with the cafe signed blank bills, then the companies’ deed not to accept the plaintiffs to be given to the plaintiff’s statements on the claimant, the plaintiff and his family submitted to the file of the plaintiff records of the plaintiff is very wealthy and 150,000.00 TL borrowing money needed to be so good that the economic situation, the defendant will lend the plaintiff 150,000,00 TL The fact that the defendant, who is economically weaker than the plaintiff, who has no economic power and who is economically weaker than the plaintiff, is against the ordinary flow of life by the plaintiff. the subject of the signature and the amount of the signature of the expert report, witness statements and the entire file from the defendant, the plaintiff signed by the plaintiff to be given to the companies that they signed the plaintiff said that the plaintiffs to take from employees after the execution of the follow-up, the defendant can not prove that the plaintiffs in the written amount of the amount of debt on the grounds that the , the plaintiff’s case, the plaintiff of Bursa 18. Enforcement Directorate file no. 60.000,00% of which is 40% of the original receivable. TL has been decided to give the claimant to the plaintiff from the defendant and the court decision was appealed by the defendant representative within the period.
(1) The request of the plaintiff, the petition dated 08/10/2013 with the request of the appeal examination to be made murafaalı as the request, the petition of the petition of the petition of the petition of the petition after the expiry of the deadline of the petition, the plaintiff’s deputy denial of the request to hear the file of appeal review It was decided to be over.
(2) The case concerned the determination of non-debtor’s claim due to the alleged fraudulent bill of exchange. Plaintiff’s allegations BK m. 28 (TBK.m. 36). Proof of proof that there is no debtor against the bills of exchange is required to prove with written evidence. The decision of the court in writing, without any consideration of these matters, has been required to disrupt the decision in writing Mah k
the court ruled by the court that the case was revoked by the court.
RESPONSIBLE: Defendant M.A.Y. deputy
THE DECISION OF THE GENERAL ASSEMBLY OF LAW
It was examined by the General Assembly of Law and it was discussed after the documents were read and the documents were read in the deadline:
The case relates to a request to determine that a debtor has been seized as a criminal offense and has not been owed due to the bond that is allegedly signed.
The plaintiff’s attorney and the defendant stated that his client was married in the past; During the marriage, the defendant, the client’s own business and the company is working in the trust is allowed to access the documents, the key is in the safe itself; In this period, his client signed a blank ticker to give as a guarantee to another person by signing over 150,000 TL by filling in the execution follow-up, but neither the client’s defendant from the defendant to take such a debt, nor the defendant’s economic power to give this money by claiming that the client’s due to this bill and demanded the cancellation of the enforcement proceedings and the compensation of 40%.
The respondent requested the parties to divorce in 2005, but his client had been working at the workplace of the plaintiff until 2008, and that the burden of proof was found on the plaintiff.
The court has stated that the claims of the plaintiff are within the scope of cheating and that witnesses who are heard in this context do not have any experience-based information regarding the issue of the bill; that the claimant and his family are very affluent and do not need to borrow any such amount; the defendant does not have the economic power to lend at this amount; In the report of the Forensic Medicine Institute taken by the Public Prosecutor’s Office stated that the signature of the signature of the signature with different items and the defendant in this context, the defendant can not prove that the plaintiffs on the grounds that the plaintiffs have failed to prove the case, the subject of the plaintiff due to the plaintiff’s claim to the defendant, it was decided to give the plaintiff.
The appeal on the appeal appeal of the defendant deputy, the Special Chamber has been disrupted with the above reason.
The local court resisted the previous judgment.
It was found that the defendant’s deputy decision was taken by the defendant in exchange for fraud, and that it was unrealistic to claim that his client had withdrawn the bonds to be given to the plaintiff when the firms refused to accept these bills; The lawyer who is a law faculty graduate and a lawyer should know how to arrange the bond, and that there is no guarantee on the bond subject to the lawsuit; no prudent merchant shall sign the vacant bill signed on the ground, leave the stock, lose the stock or the bill is stolen it will notify the police or the prosecutor immediately, three years after the receipt of the new notice that the receipt of the new life is completely contrary to the experience and the facts that no one that he would not sign an empty bill and if he had signed all the elements and even signed a certain deed, he would surely investigate the fate of this bill he signed; In the reasoned decision of the court, it was stated that the defendant witnesses did not have any information based on the subject of the deed, however, even if it was mentioned that the bills issued as collateral for the various companies were returned to the various companies for a moment, that there is no other data about it; the assertion of non-written collateral in the text of the deed can only be proved by written evidence; that the statements of the plaintiff witnesses who were heard were not reflecting the truth because the witnesses were composed of the members of the plaintiff who worked alongside him and his close friends and that their statements were abstract and contradictory; there is no written evidence that the firms demanded the bond, the bonds are requested by the firms and filled with blank for this purpose, then these companies are not accepted by the companies that are not accepted by the companies, instead of supporting the claim that a check is requested instead of bonds not provided; The claim that the witness Leyla wanted to be seized, and hence, that the bill was seized by cheating, is understood to be the product of a completely unrealistic scenario; the claim is based on the bond, the court’s decision to resist the claim of the client to the claimant that the client can not prove that the loan, they never claim that they are based on the loan agreement, to prove that the client will also take the sub-relationship to the receipt of the claim and the sub-relationship is not obliged to prove that; the claimant in the filed to the file in all the petitions and witnesses in the expression of the client is unemployed, powerless, free of charge, it is declared that it is not possible to be a creditor from the plaintiff, the relationship between the claimant and the client is not only a past marriage relationship in the past, there is a commercial relationship between the parties that my client had worked as a manager in the restaurant ‘K çok E mış’ in which he claimed that his client had already made numerous payments to the claimant via bank transfer; both the witness records and the bank records and payment documents that they submitted to the file, revealing the existence of a commercial relationship between the parties for a long period both during and after the marriage; that the client may be a creditor with the subject matter of the case of the plaintiff is appropriate to the general life experiences; the court and the family of the plaintiffs filed to the file of the plaintiffs belonging to the plaintiff is very wealthy and 150,000 TL in debt to the economic status of not need to be so good, his client, the plaintiff to lend 150,000 TL of economic power to work, the claimant who is economically much weaker who works next to the plaintiff Although it is stated that the lending money is contrary to the usual flow of life, in order to become a creditor one of the other legally, the economic condition of the creditor shall not be required to be better than the debtor’s economic situation; otherwise, the economic and social situation of the parties in all kinds of receivables and enforcement proceedings shall be investigated. whether the borrower is economically superior to the creditor from the creditor side; Although my client does not have to legally document his economic status in order to become a creditor with the bill of exchange, this issue has been proved by his parties; According to the balance sheets presented by the plaintiff as the means of proof of the economic power of the plaintiff, it was stated that the plaintiff’s economic situation was bad at the time and that the deed records submitted belonged to the acquired and inherited properties. during the trial, the rule against which the witnesses could not be heard was violated; the bill is filled in by the client at the request of the plaintiff and and appealed to the Court of Appeal for the appeal against the appeal of the judgment of the Court of Cassation and the Supreme Court of Appeals.
The dispute to the General Assembly of the Law on Resistance: It is gathered whether the claims of the plaintiff in the event of a concrete incident will be accepted within the scope of deception and the evidence to be obtained will be used as proof of evidence.
In order to resolve the dispute, it would be appropriate to give brief information on bills and collateral function in this context, the claim that the bill is regulated by deception, and the rules of proof on them and the effect of the criminal case on legal proceedings.
Article 688 of the Turkish Commercial Code No. 6762, which was in force at the maturity date of the litigation and follow-up, indicated the elements of the bill and Article 690 of the Turkish Commercial Code stated that some of the policies will be applied for the bills unless they are contrary to its nature.
As a rule, bills are credit instruments. In contrast to the general principle of concurrent and mutual performance of acts (TBK m.96), the debtor, acting against the sub-legal relationship, may act against a subordinate legal obligation instead of paying the debt immediately. In fact, these payments can be attributed to the bills they issue in installments and consecutive maturities. Thus, the bond gives its beneficiary time to pay, while providing the beneficiaries with the opportunity to maintain a commercial relationship with turnover. In practice, it is seen that bonds are also arranged for collateral. Indeed, even if there is no debt arising from the sub-relationship between the parties and if it is not certain what is the amount of it, the parties can issue bonds or they can endorse an existing bond (TTK m.689). It should be noted that since the bills are arranged as a rule for an existing debt, it is an exception that they are regulated for security purposes and this situation has a close relationship with abstraction. As a matter of fact, in case of writing that the bill is given for the purpose of guarantee, the abstractness of the bill disappears and the ability to transfer is limited; in the case that this phrase is not written, proof of the claim of the guarantor is required to be written proof, limited to the beneficiary; Claims of collateral against creditors other than the beneficiary cannot be invoked unless they have acquired the bond in bad faith or with serious flaws (cf. TTK m.680).
The dominant view of the birth of the rights contained in the bills of exchange is explained by the theory of theory in Turkish law teaching, which is supported by the principle of trust. According to this theory, the right to the debt contained in the regulation of the bill contained in the right not immediately, for the birth of the debt of the debt to be given to the beneficiary with the intention of undermining the debt, ie the delivery of a similar contract is required.
On the other hand, Article 659 of the Turkish Commercial Code states that the legal appearance theory will be taken into consideration. The conclusion obtained from these explanations and regulations is the necessity of evaluating the theories together according to the characteristics of the concrete event at the point of birth of the right that is included in the bill of exchange for Turkish law.
The establishment of the foreign exchange agreement is possible with the declaration of mutual and mutual will in accordance with the general provisions of the Turkish Code of Obligations. The provisions of the same Law shall also be taken into account for the disclosure and mutilation of the will.
The will of a legal transaction and its constitution in the establishment of a contract should not be intact, in other words, it should not be mischievous. In the event that the deterioration in the will emerges as a result of the deceit of the other party of the contract or a third party, the declarant shall not be bound by the contract (818 p. EBK m.28; TBK m.36). According to EREN, to declare a will to submit a declaration of will, in particular to contract, is called deliberate misrepresentation, or deception, to preserve or maintain a false belief.
Deception (gimmicks) can be realized by a verb. This act may be an active movement or a passive behavior, an avoidance or silence. The deception is a de facto material fact and the legislator foresees that it is not possible to link this case in the year and that it is used as proof of evidence (HUMK m.293 / 5; HMK m.203 / ç). This regulation constitutes one of the important exceptions of the proof against counter deed (HUMK m.290; HMK m.201), especially in terms of written contracts.
In the light of the principles described above, an abstract debt is created from the main debt relationship which constitutes the basis for the issuance of the bills of exchange and the person who holds the certificate, and does not have to prove the sub-relationship; It can be concluded that the bills of exchange can be obtained by deception and that the deception case can be proved by the witness.
The effect of penal court decisions on civil cases is regulated in Article 74 of the Turkish Code of Obligations (Article 17 of the Turkish Commercial Code). According to Article 53 of the Code of Obligations No. 818, which is in force at the date of the discovery of the case and the subject of the case, the judge of the judiciary is not bound by the rules of the criminal law concerning the determination of whether the defect or the offender has the power to discriminate, it is not affiliated with the decision of acquittal. The judgment of the criminal court also does not bind the judge of law to determine the defect and to determine the amount of the damage. As can be seen, the fact that the act does not constitute a crime in terms of criminal law cannot be considered as the fact that in terms of the perpetrator, the act cannot be regarded as tort in private law and that it will not cause any responsibility.
The idea that convictions would not bind the judge was adopted.
In the light of the legal regulations and principles described above;
The plaintiff’s claim is that the bill is issued after the bond has been issued to constitute a guarantee of another commercial relationship, but the defendant who seizes the bond is placed in the favor of the defendant by filling the gaps in the favor. This claim does not constitute a deliberate misunderstanding of the plaintiff’s regulation of the plaintiff or the preservation or maintenance of the allegedly false opinion and does not conform to the definition of deception.
As it is concluded that the claimant’s claims cannot be accepted in the scope of deception, it is understood that they cannot be applied to the evidence of evidence. When the contract theory and the principle of trust are taken into consideration, the claim made by the defendant in his favor in contradiction with the agreement between the empty bond deposited to him or her for one reason or another, can only be proved by the written evidence (HUMK m.290; HMK m.201).
While the public trial was filed at Bursa 14th Criminal Court of First Instance against the defendant for the offense of the official document, the decision to postpone the announcement of the provision was given by the decision dated 16.01.2014 and 2012/730 E., 2014/22 K., given at the end of this case. This decision does not count as a conviction decision, it does not bind the judge of law (HGK in the same direction, 19.02.2014 days and 2013 / 23-320 E., 2014/118). Moreover, the criminal court waited for the decision of the court of law and established the aforementioned provision on the decision of negative judgment. As a matter of fact, before the appeal examination, the Special Chamber had rejected the file for the addition of a criminal court file and decided on the decision to resist by examining the criminal case file.
In that case, the court’s decision to consider the allegations in a way that does not conform to the legal definition, and the decision of the court on the grounds of resolving its decision by applying for witness evidence for its proof and for the same reasons.
In this case, the decision to violate the court should be obeyed, while resisting in the previous decision is against the procedure and the law.
Therefore, the decision to resist should be disrupted.
CONCLUSION: The defendant M.A.Y. with the approval of the appeal of the Appelance, the decision to resign the decision of the decision of the Special Chamber disruptions, the request to return to the investor in the case of the request for the appeal of the advance fee, 15 days after the date of notification of the correction way is clear, the decision was unanimously decided on 14.03.2018 .