Appeal Against A Conviction For Breach Of Enforcement Commitment
… ENFORCEMENT CRIMINAL COURT
To Be Sent
… CRIMINAL COURT
FILE NO: 2021/.. E. 2021/.. K.
OBJECTOR
ACCUSED :
THE PLAINTIFF :…….
ATTORNEYS :…….
DEFENDANT :…….
SUBJECT :Due to the debtor’s violation of the debtor’s payment terms
… Criminal Court of Execution
../../2021 dated 2021/… E. 2021/.. K. numbered decision
Our objections consist of our objections.
EXPLANATIONS :
The client debtor has been sentenced by the … Execution Criminal Court to a prison sentence of up to 3 months for violating the payment terms, and this decision is unlawful. Namely;
The payment commitment given by the client debtor does not carry the elements of validity. As it is known from the established jurisprudence of the Court of Cassation, in order for the commitment to be considered valid, the amount of interest, attorney’s fee, execution fees and expenses, and thus the amount based on the commitment of the debt must be determined at the time the debtor makes the commitment. These issues were not taken into consideration in the commitment given by the client.
Decision of the 12th Civil Chamber of the Court of Cassation dated 02.03.2021, 2021/1774 E. 2021/2315 K. “…According to the scope of the file; Article 340 of Law No. 2004. In order for the offense of breach of commitment to occur in accordance with Article 340 of the Law No. 2004, the total amount of debt, the interest that has been and will be processed, the attorney fee, the execution fees and expenses should be determined together and the amount based on the debtor’s commitment should be clearly shown in the commitment report, … However, it is understood that there is no clarity regarding the interest accrued from the date of the follow-up to the date of commitment, the amount of interest accrued and to be accrued is not calculated and shown separately, as well as the creditor’s statement of waiver of interest accrued from the date of follow-up to the date of commitment, and for these reasons, there is uncertainty due to the fact that the amount of interest accrued and to be accrued is not shown separately in the commitment minutes, and the commitment is not valid since the collection and application fees to be paid by the debtor are not shown in the commitment minutes, It was not deemed inappropriate to decide to reject the objection in writing without considering that it should be decided to accept the objection since the elements of the crime attributed to the defendant did not occur. .”
The payment commitment given by the client does not carry the elements of validity mentioned in the aforementioned Court of Cassation decision. The … Criminal Court, which decided to convict the client due to the non-fulfillment of the legally invalid commitment 2021/… E. 2021/.. It has become necessary to apply for an appeal to the decision numbered 2021/… E. 2021/… K..
At the same time, in Article 340 of the Enforcement and Bankruptcy Law, the violation of the payment condition agreed upon in the enforcement office with the consent of the creditor by the debtor without a reasonable reason is regulated as an optional offense and the sanction is envisaged as a freedom-binding penalty. It has been accepted by the Court of Cassation that the concept of “reasonable cause” in the aforementioned article is narrower than the concept of “inability to fulfill” in paragraph 9 of Article 38 of the Constitution, and it has been stated that our Constitution protects those in economic difficulty who cannot fulfill their debts with this article.
For this reason, while it is necessary to determine the client’s livelihoods, lifestyle and income sources, to determine whether the client has avoided the debt by fraud and to make a judgment as a result of this information, it is unlawful for the court to make a judgment against the client without conducting research on this issue.
LEGAL GROUNDS : 2004 S. Law 340,353 and related legislation
LEGAL EVIDENCE :Execution proceedings file and other evidence
CONCLUSION AND REQUEST : For the reasons we have explained in detail above and to be taken into consideration ex officio, we request that our objections against the conviction decision issued by the … Enforcement Criminal Court against the client due to violation of the payment terms be ACCEPTED, that the client debtor be acquitted, and that the trial expenses and attorney’s fee be charged to the other party. Sincerely. 09.12.2021
Accused M
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