Merchant’s Abandonment Of Trade
T.C.
JUDICIARY
- CRIMINAL COURT
- E. 2016/8672
- K. 2018/8955
- T. 17.9.2018
TRADER’S TERMINATION OF TRADE (First of all, it will be asked from the Tax Office Directorate where the debtor Trade Company is registered whether its taxpayer status continues or not, and all tax declaration samples for the relevant years will be examined to determine whether the trade was abandoned during the period when the defendant was authorized and whether the complaint is in time or not – In case it is reported that the taxpayer status continues and the address is different, the legal situation should be determined by conducting a police investigation at this address)
SUBSEQUENT DISPOSITION OF PROPERTY STATED IN THE PROPERTY DECLARATION
(Tax Office where the debtor Trade Company is registered)
It is asked from the Directorate whether the taxpayer continues to be liable or not.
In order to determine whether the defendant left the taxpayer during the period in which the defendant was authorized and whether the complaint is in due time, all tax declaration samples for the relevant years will be examined – In case it is reported that the taxpayer continues to be a taxpayer and the address is different, a police investigation should be carried out at this address and a determination should be made)
THE ACCUSED IS THE AUTHORIZER OF THE DEBTOR COMPANY ( Related to the Debtor Company
The books, records and bank accounts of the years will be obtained from the place where they are located and an expert examination will be made on them in such a way that the debts of the finalized enforcement proceedings will also be included in the passive – If the bankruptcy of the debtor commercial company should be requested, the date when the bankruptcy should be requested for the first time will be determined and the judgment will be established by discussing whether the complaint is in time and whether the crime occurred on the date when the defendant was authorized)
Failure to arrange criminal sanctions against legal entities ( Complaint
Although there is no request for a punishment in this direction in the petition, the debtor company is written as a defendant in the title of the reasoned decision – It should be recorded as a defendant in the UYAP System )
DIFFERENT QUALIFICATION OF THE CRIME ( Reasoned Decision on the Accused
Debtor’s Payment Condition Without a Complaint as a Criminal Offense in the Title
The Offense of Violation of the Offense is Written – Manager in Commercial Companies with Complaint
The Failure to Write the Crimes of Responsibility and Abandoning the Trade Irregularly is Contrary to the Law )
2004/m. 44, 179, 333/a, 337/a, 345/a
6102/m. 376
6762/m. 324
5237/m. 20/2
SUMMARY : The case is related to the merchant who abandoned the trade. In the face of the fact that there is no hesitation that it will occur if any of the optional actions listed as saving on these declared goods after the declaration of property, if the other conditions are also realized, and in the event that it is understood from the file content that the complainant has suffered damage due to this action; first of all, the taxpayer’s tax liability from the Tax Office Directorate where the debtor trade company is registered
In order to ask whether the trade was abandoned during the period when the defendant was authorized and to determine whether the complaint is in time, all tax declaration samples for the years 2012, 2013 and 2014 should be brought and examined, and if it is reported that the tax liability continues and the address is different, the legal status of the defendant should be determined and appreciated by evaluating the evidence as a whole by conducting a police investigation at this address other than the address registered in the registry of the debtor company as of the date of the complaint. In the face of the fact that the defendant was the authorized person of the debtor company between the relevant dates, first of all, the commercial books, records and bank accounts of the debtor company for the years 2012, 2013 and 2014 should be obtained from where they are located, and an expert examination should be made on them in a way to include the debts of the finalized enforcement proceedings files in the passive, and if the bankruptcy of the debtor commercial company should be requested, the date when the bankruptcy should be requested for the first time should be determined, and according to the result, the legal status of the defendant should be appreciated by discussing whether the complaint is in time and whether the crime occurred on the date the defendant was authorized. Although it is regulated that criminal sanctions cannot be imposed on legal entities and there is no request for punishment in this direction in the complaint petition, it is against the law to write the debtor company as a defendant in the title of the reasoned decision and to record it as a defendant in the UYAP system and to write the crime of violation of the payment condition of the debtor, which is not a complaint, as the name of the crime in the title of the reasoned decision about the defendant, and not to write the crimes of the manager’s responsibility and illegal abandonment of the trade in commercial companies where there is a complaint.
CASE : The judgments given by the Local Court were appealed; the file was examined according to the duration of the application, the nature of the decision and the date of the crime, and the file was examined, and the necessity was discussed and considered:
DECISION : Since there were no reasons for the rejection of the request for appeal, the merits of the case were examined.
In the examination made according to the content of the minutes, documents and justification reflecting the trial process in which the conscientious opinion was formed;
1-) In the examination of the verdict established for the offense of violation of Article 333/a of the Enforcement and Bankruptcy Code, Article 333/a of the Enforcement and Bankruptcy Code states that “Those who legally or actually have management authority in commercial companies; despite the fact that the commercial enterprise has the economic power to pay the debts of the commercial enterprise, they intentionally cause damage to the creditors by not paying the debts of the commercial enterprise partially or completely, and they also commit another crime by this action
the defendant will be punished if it does not constitute a debt”, and Article 351 of the same law states that the complainant is bound by the evidence shown in the petition and declaration. In the face of the fact that it is stated in the article that the complainant is bound by the evidence shown in the petition and statement, that there is no claim in the complaint petition that the debtor company is capable of paying the debt, on the contrary, it is claimed that the debtor company, of which the defendant is an authorized officer, is incapable of paying the debt, and in this case, it is clearly understood that the act will constitute a crime other than the crime shown in the complaint petition in case the crime is committed; While a verdict of acquittal should be given on the grounds that the crime in Article 333/a of the EBL cannot occur in terms of its elements, since it is correct as a result to give a verdict of acquittal on the grounds that the defendant was the authorized representative of the debtor company for a short period of time without considering that the defendant was the authorized representative of the debtor company as of the date of the finalization of the execution proceedings subject to the complaint, since the reasons for the appeal of the complainant’s attorney regarding the action and the imputed crime were not deemed appropriate, in accordance with the notification, the appeal was rejected on the merits and the verdict was approved,
2-) In the examination of the convictions for the offenses of violation of articles 337/a and 345/a of the EBL,
a-) In terms of the merchant who has abandoned the trade; in order to protect the rights of the addressees, Article 44 of the EBL stipulates that a merchant who has abandoned the trade With Article 44 of the EBL, a merchant who has abandoned the trade is obliged to notify the trade registry where he is registered within 15 days and to make a declaration of property showing all his assets and liabilities and the names and addresses of his creditors, to announce it in the newspaper where the trade registry announcements are published by the trade registry office and in the places where the creditors are located, and to announce it by usual and appropriate means and to pay the announcement costs, and the sanction for violating these obligations is regulated in Article 337/a of the EBL, and the prosecution of this optional offense is subject to complaint;
1-) Failure to make a declaration of property according to Article 44 of the EBL,
2-) Understatement of assets in the declaration of assets,
3-) Failure to show the asset or its substitute value during seizure or bankruptcy,
In order to determine whether it has been abandoned and whether the complaint is in time, all tax declaration samples for the years 2012, 2013 and 2014 should be brought and examined, and if it is reported that the tax liability continues and the address is different, the legal status of the defendant should be determined and appreciated by evaluating the evidence as a whole by conducting a police investigation at this address other than the address registered in the registry of the debtor company as of the date of the complaint,
b-) In order for the crime under Article 345/a of the EBL to occur, it is necessary to determine the assets and liabilities of the company as of the date of the complaint under the conditions stipulated in Article 179 of the same Law and Article 376 of the Turkish Commercial Code No. 6102 (Article 324 of the TCC No. 6762) and to determine whether there are conditions for requesting the bankruptcy of the company according to the result, in view of the fact that the defendant was the authorized person of the debtor company between 08/10/2013 and 03/02/2014, first of all, the commercial 2012, 2013 and
2014 books, records and bank accounts are obtained from the place where they are located, an expert examination is made on them in such a way that the debts of the finalized enforcement proceedings files are included in the passive, and if the bankruptcy of the debtor commercial company should be requested, the date when the bankruptcy should be requested for the first time should be determined, and according to the result, the legal status of the defendant should be appreciated by discussing whether the complaint is in time and whether the crime occurred on the date when the defendant was authorized, but in writing with incomplete prosecution without an expert examination
Decision of acquittal for the offense of violation of Article 345/a of the EBL,
According to the acceptance;
a-) Criminal sanctions against legal entities under paragraph 20/2 of the TPC No. 5237
Although there was no request for punishment in the complaint petition, the debtor company was written as a defendant in the title of the reasoned decision and recorded in the UYAP system as a defendant,
b-) Although a complaint was filed against the defendant for violating Articles 333/a, 337/a and 345/a of the EBL, the title of the reasoned decision includes the offense of violation of the debtor’s payment condition, for which there is no complaint, and the offenses of responsibility of the manager in commercial companies and illegal abandonment of the trade, for which there is a complaint, are not written,
CONCLUSION : It is contrary to the law and the reasons for the appeal of the complainant’s attorney are therefore appropriate
therefore, in partial accordance with the notification, the verdicts are affirmed in accordance with
321 of the Code of Criminal Procedure No. 1412, which must be applied pursuant to Article 8/1 of the Law.
article, and the trial will be resumed from the stage before the reversal.
the file to the court to be continued and finalized starting from
It was unanimously decided on 17.09.2018.