Fraudulent Bankruptcy
Elements and Punishment of Fraudulent Bankruptcy (TCK 161)
Article 161 of the TCC punishes not the act of “going bankrupt”, but the fraudulent dispositions aimed at reducing the assets before or after the bankruptcy decision. The crime is a crime committed with special intent and the perpetrator’s purpose in making fraudulent dispositions must be “to reduce the assets”.
The objective condition for the punishability of the fraudulent bankruptcy offense is that a bankruptcy decision is issued by the Commercial Court for the real or legal person merchant. If the bankruptcy decision is not issued, the fraudulent dispositions of the merchant cannot be punished. In criminal law, the objective punishability conditions are not the elements of the crime, but the conditions that must be met in order for the perpetrator to be convicted.
The fraudulent bankruptcy offense can only be committed by a merchant who is engaged in commercial activity and is subject to bankruptcy. For example, an ordinary tradesman closing his shop because he cannot pay his debts does not constitute the offense of fraudulent bankruptcy. In case the merchant is a legal entity (limited liability company, joint stock company), the real persons who are the organs or representatives of the legal entity and who make dispositions on behalf of the legal entity are prosecuted as the perpetrators of the crime.
The crime of fraudulent bankruptcy is an optional offense and the crime occurs when any of the optional acts is committed. If more than one optional act is committed, the perpetrator is punished for a single bankruptcy offense. The following fraudulent acts aimed at diminishing the assets are optional acts of the fraudulent bankruptcy offense:
Smuggling, concealing or causing a decrease in the value of goods that are the collateral of creditors’ receivables,
Concealment or destruction of commercial books, records or documents in order to prevent the discovery of their dispositions to evade assets,
Issuing documents in such a way as to cause an increase in debts, as if there is such a relationship, even though there is no receivable and payable relationship in reality,
Underestimation of assets through false accounting records or the preparation of a false balance sheet.
Sample petition for fraudulent bankruptcy offense
TO THE … PUBLIC PROSECUTOR’S OFFICE
CONTACT :
TC ID NUMBER :
ADDRESS :
GUARDIAN :
ADDRESS :
SUSPECT MUFTI :
CRIME : It is related to fraudulent bankruptcy offense.
DATE OF CRIME : …/…/…
EXPLANATIONS :
1-) Suspect … … , …. Company. They had commercial relations with our client for a period of time. Our client … … sold construction materials to the suspected defendant, in return for which he received a check with the check number ….. belonging to the Bank ….. to be collected after six months (Annex 1). Bank with a check number ….. (Annex 1)
2-) Three months after this purchase and sale relationship between our client and the suspect, the suspect declared bankruptcy on …./…/…., and the suspect was declared bankrupt by the … Commercial Court’s decision numbered …/… Esas, …/… (Annex 2)
3-) However, before the bankruptcy decision was taken by the Commercial Court ….., the suspected bankrupt … transferred the two apartments registered in his name in the title deed to his divorced wife … … (Annex 3) The suspect-bankrupt and the person named …. …. divorced …. Family Court’s …./…. E. …./…. K. numbered case file of the Family Court of will also be seen by the Honorable Court. (ANNEX 4)
4-) It is clear that the bankrupt … … acted with the purpose of evading his creditors. He transferred his assets to his divorced wife in the title deed.
5-) For the reasons explained, it has become necessary to request a public lawsuit to be filed against the bankrupt, who has clearly damaged our client by making a collusive sale, by making the necessary investigation to punish him.
LEGAL GROUNDS : Article 311 of the Law No. 2004, Article 161 of the Law No. 5237
EVIDENCE : A photocopy of a check issued as a result of the purchase and sale relationship between our client and the bankrupt, a copy of the bankruptcy decision issued against the bankrupt, …. Family Court case file numbered …./…. Case file numbered /, title deed records regarding the immovable
CONCLUSION AND REQUEST : For the reasons explained above, we respectfully request on behalf of our client that the necessary investigation be carried out and a public lawsuit be filed against the person who transferred his immovable property to his divorced wife in order to evade property from our client. …/ …/ …
ANNEX:
1-) Photocopy of one check numbered …… belonging to …. Bank, which was issued as a result of the purchase and sale relationship between our client and the bankrupt.
2-) A copy of the bankruptcy decision of the … Commercial Court with the number …/… Main, …/… Decision.
3-) Title deed records for the immovable property
4-)…… Family Court case file numbered ……
3-) One approved power of attorney sample
Deputy Complainant