Postponement Of Execution Proceedings Due To Coronavirus Regional Limitation And Time Limitation In Terms Of Implementation Of The Decision
Territorial Limitation and Time Limitation for the Implementation of the Decision
The Decree explicitly decides to suspend “nationwide” proceedings and proceedings.
Again, as of March 20, 2020, the date of publication and entry into force of the Decree, April 30, 2020
It was decided that Article 330 of Law No. 2004 shall enter into force until such date.
Although Article 330 of Law No. 2004 only states that “enforcement proceedings” shall cease,
The Decision regulates the subject matter in detail, and provides for bankruptcy proceedings and precautionary attachments in addition to execution proceedings.
(i) Enforcement Proceedings and Bankruptcy Proceedings, (ii) Party Proceedings, (iii) New enforcement proceedings
and bankruptcy proceedings, (iv) the precautionary attachment decisions shall not be enforced 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 for the directorates to take new enforcement and bankruptcy proceedings. This means that no real or
legal person will not be able to initiate enforcement and bankruptcy proceedings against another natural or legal person.
ii. Parties and Proceedings
It is important to determine whether the transactions in the enforcement law are enforcement or party proceedings. This is because
The legislator has attached different consequences to the enforcement proceedings. The first of these consequences is that the enforcement proceedings
The second consequence is the interruption of the statute of limitations; the second consequence is that, as a rule, in cases of vacation-termination, the enforcement proceedings
cannot be made. For this reason, transactions that do not qualify as enforcement proceedings, such as a request for enforcement proceedings, may not be subject to vacation-tâlik
in cases of extraordinary circumstances.1 For this reason, the Execution and Bankruptcy Law No. 2004’s “Holiday in Extraordinary Circumstances
Determination of enforcement proceedings will be important for the application of Article 330.
The elements of an enforcement proceeding are as follows
– Not made by the executive branch,
– Action against the debtor
– Ensuring the advancement of enforcement
The authority to use force is evaluated under three headings.
“The authority to use force within this framework, which ensures the fulfillment of the right arising from material law
organs whose powers are determined by law” are defined as enforcement organs.2
Enforcement bodies are divided into two as main and auxiliary enforcement bodies. Organs established solely for enforcement affairs
bodies are the main enforcement bodies. These are the enforcement office, the enforcement court and the Court of Cassation.
are the civil chambers in charge. Bodies that deal with enforcement matters in addition to their main duties are the auxiliary enforcement
bodies.
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 creditor, debtor or third parties
cannot be considered as “enforcement proceedings”.
In order for the enforcement proceedings to be considered as enforcement proceedings, they must be carried out against the “debtor”. Enforcement
actions of its bodies against the creditor or third parties are not enforcement proceedings. In addition to this,
Transactions related to the internal functioning of the enforcement bodies cannot be called enforcement proceedings. Enforcement enforcement
The creditor is the person who initiates and seeks to obtain the claim, and the other party is the debtor. The debtor is bound to the creditor
is a concept. The person designated as “debtor” by the creditor in the follow-up request gains the title of debtor and
proceedings regarding the 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 enforcement proceeding request is accepted as a party.
Third parties other than the creditor and the debtor may also take part in the enforcement proceedings, or third parties during the enforcement proceedings
(For example, a third party may have established a pledge right for the receivable subject to the proceedings (Art.
146/I, 149/I, 149b/I) or the goods and rights of third parties may be seized under the assumption that they belong to the debtor (Art.
89, 94, 96-99, 228).) Even if 3rd parties are not directly related to the enforcement proceedings or the outcome of the enforcement proceedings, the enforcement
play an active role in enforcement proceedings. However, this does not mean that third parties must be one of the parties to the enforcement proceedings.
does not have any consequences. 3rd parties are only parties to complaints and lawsuits concerning them. This
Therefore, since the transactions made against third parties do not fulfill the condition of “being made against the debtor”, the execution
cannot be characterized as an enforcement proceeding.
If there is a voluntary follow-up friendship between the debtors, the execution of the execution proceedings by the enforcement bodies
to be characterized as a transaction against all of the debtors. Only the relevant
against the debtor is sufficient for the characterization of an enforcement proceeding. Because in voluntary follow-up friendship
The friends of the enforcement proceedings may act independently of each other.
The enforcement proceedings must be of a nature to ensure the progress of the enforcement proceedings. These proceedings must bring the creditor
are transactions that bring the creditor closer. Enforcement proceedings are aimed at collecting the creditor’s receivables. Payment order
Notification of the payment order, removal of the objection, foreclosure proceedings, giving time to the debtor, enforcement proceedings
example can be given. However, the division of the monies (Art. 138 et seq.) is not an enforcement proceeding.
As stated in the Decision, only “party enforcement proceedings” are suspended. In the technical sense of the Decision
the characterization of the unused party enforcement proceeding as “enforcement proceeding” pursuant to the Execution and Bankruptcy Law No. 2004
should be accepted as “enforcement proceedings”. For this reason, enforcement proceedings that are not enforcement proceedings
We are of the opinion that there is no objection to the continuation of their operations.
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