Contractor’s Sale Of The Same Apartment To More Than One Person Constitutes The Offence Of Qualified Fraud
The crime of fraud occurs when the perpetrator deceives someone with fraudulent behaviour to the detriment of the victim or someone else and additionally to the benefit of himself or someone else. In the qualified form of the offence, it is committed by using certain religious, social, professional, technological tools or public institutions as tools. Therefore, the existence of an unfair advantage is necessary for the offence to exist. As an example, in the decision given below, the action of the contractor who sold the same apartment to more than one person constitutes the offence of qualified fraud. Because the person sold the same flat to more than one person by using his current professional status and obtained unfair gain. You can examine the Sample Court of Cassation Decision.
15th Criminal Chamber
Principal Number: 2012/18721
Decision Number: 2014/11459
“Case Law Text”
COURT :Serious Criminal Court
CRIME : Qualified fraud
CONVICTION : Conviction
The file was examined and considered;
In order for the crime of fraud to occur; the perpetrator must deceive a person with fraudulent behaviours that can deceive a person and benefit himself or someone else to the detriment of him or someone else. Fraud is a qualified lie. The fraudulent behaviour performed by the perpetrator must be heavy, intense and skilful to a certain extent, and there must be a number of movements that will eliminate the victim’s ability to examine in terms of display.
The victim must be misled by the fraudulent behaviours used, and as a result of this misleading, the victim who believes the lies must provide unfair benefit to the defendant or someone else. Whether the deception is deceptive or not should be evaluated on a case-by-case basis, and the characteristics of the event, its relationship with the act, the situation of the victim, and the characteristics of the document concealed or altered, if used, should be taken into consideration separately.
In order to ensure the reliability of persons who perform commercial activities as a profession, the commission of this offence during the commercial activities of persons who are merchants (persons who are personally engaged in trade) or company managers or acting on behalf of the company is accepted as a qualified case in Article 158/1-h of the TCC. These concepts will be determined according to the relevant provisions of the Turkish Commercial Code. In Article 14 of the Turkish Commercial Code; Merchant, due to their personal circumstances or the nature of their business or due to their profession and duties, the person who operates a commercial enterprise in violation of a prohibition … from the law or a judicial decision … or without obtaining permission or approval, although the permission of another person or an official authority is required, is also considered a merchant. “is stated herein.
Commercial companies are defined in Article 124 of the same law as follows: “Commercial companies consist of collective, limited partnership, joint stock, limited liability and co-operative companies. In this Law, collective and limited partnership companies are considered as private companies; joint stock, limited liability and limited partnership companies with capital divided into shares are considered as capital companies”. The perpetrator of this offence may be a merchant or a company manager or a person acting on behalf of the company or a cooperative manager.
… Although the defendant, who is the official of … Construction Furniture Limited Company, sold the apartment numbered 2 E 12th Block 3 on the Eryaman Mass Housing Zone … block 1 parcel numbered 1, which the said company undertook the construction of, to the participant … on 31/03/2005 with the sales promise contract issued by Ankara 13th Notary Public, the same independent section was sold on 08. 01.01.2007 with the sales contract dated 08.01.2007 to the participant …. and received the money in advance, although he sold the apartment numbered … Block 6 in the same place to the participant …. on 09/02/2005 with the sales promise contract issued at the Ankara … Notary Public on 09/02/2005,
he sold the same independent section to the participant …. with the sales contract dated 30.05.2007. 2007 with the sales contract dated 30.05.2007 to the participant …. and received the money in advance, although he sold the flat numbered 4 H 7th Block 13 in the same place to the participant …. on 21/07/2005 with the sales promise contract issued at Ankara 13th Notary Public on 21/07/2005, he sold the same independent section on 15.03. 2008 with the sales contract dated 15.03. 2008 to the participant … and received the money in advance; in the case where it is claimed that the defendant, who is a company manager, committed the offence of qualified fraud committed within the scope of his commercial activity;
1- In the examination of the appeal requests for the convictions against the defendant for his actions against the participants … and …;
According to the facts, the defence of the defendant, the statements of the witnesses, sales contracts, sales promise contracts and the whole file; there is no inconsistency in the acceptance that the act of the defendant, who is a company manager, within the scope of his commercial activity, in the form of providing unfair advantage to the participants … and … by selling the flats he promised to sell to other persons with the sales promise contracts issued at the notary public and receiving their money in advance, constitutes the offence of qualified fraud.
According to the trial, the evidence collected and shown in the decision, the court’s opinion and appreciation formed in accordance with the results of the prosecution, and the scope of the file examined, the other appeals of the public prosecutor and the defendant’s defence counsel are rejected, but;
Although the imprisonment sentences imposed for the offence of fraud were determined from the lower limit, without showing sufficient and legal justification when determining the judicial fines, determining the number of full days by moving away from the minimum limit with the same justification and assigning excessive punishment to the defendant,
Since the appeals of the public prosecutor and the defendant’s defence counsel have been deemed appropriate for these reasons, the convictions shall be DISMISSED pursuant to Article 321 of the Code of Criminal Procedure, which shall be applied in accordance with Article 8 of the Law No. 5320; however, this contradiction shall not be subject to the provisions of the same Code without a retrial.
322. article of the Turkish Penal Code No. 5237, “to be sentenced to a judicial fine of 20000 TL, which is 20.00 TL per day in accordance with Article 52 of the same law in return for the 1000 days judicial fine imposed as a result in accordance with Articles 158/1.h, 52/2 of the Turkish Penal Code No. 5237” instead of “to be sentenced to 5 days judicial fine in accordance with Article 158/1. h article of the Turkish Criminal Code No. 5237, and sentenced to a judicial fine of 100.00 TL as a result, being 20.00 TL per day in return for the 5 days judicial fine imposed pursuant to Article 52/2 of the same law”, the verdict shall be approved with corrections,
2- In the examination of the appeal requests for the acquittal verdicts against the defendant for his actions against the participants …, … and …;
The defendant promised to sell the flats in question to the participants …, … and … with sales promise agreements and then did not complete the construction of the flats and then sold the same flats to other persons by exhibiting fraudulent behaviour and deceiving the participants by selling the same flats to other persons and obtaining unfair advantage by deceiving the participants, considering that the actions that are seen to be fixed as constituting the offence of qualified fraud, a verdict of acquittal should be given for the defendant in writing by making a mistake in the appreciation and evaluation of the evidence without considering that a verdict of acquittal should be given,
Since the appellate objections of the Public Prosecutor were deemed appropriate in this respect, it was decided unanimously on 09.06.2014 that the verdicts be reversed in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320 for this reason.
You can access our other article examples and petition examples by clicking here.