Uncertainty In The Payment Commitment , Invalidity Of The Undertaking
JUDICIARY 11th Criminal Chamber Main: 2013/11074 , Decision: 2013/8061
With the notification dated 02/05/2013 and numbered KYB.2013/140291 issued by the Chief Public Prosecutor of the Supreme Court of Appeals with reference to the request of the Ministry of Justice General Directorate of Criminal Affairs for reversal in favor of the law dated 15/04/2013 and numbered 2013/5880/24325;
Following the decision of …1st Execution Criminal Court dated 19/03/2012 and numbered 2012/178 Amended Work numbered, dated 13/12/2011 and numbered 2011/1522 Esas, 2011/1813 of the …5th Execution Criminal Court dated 13/12/2011 regarding their acquittal as a result of the trial against the defendants … for the offense of violating the payment condition, the defendants were sentenced to a fine of up to 3 months in accordance with Article 340 of the Execution and Bankruptcy Law No. 2004. In the examination of the file covering the decision of the …1st Execution Criminal Court dated 01/10/2012 and numbered 2012/511 Change of Work dated 01/10/2012 regarding the rejection of the objection made by the attorney of the defendant … against the decision of the …5th Execution Criminal Court dated 10/07/2012 and numbered 2012/418 Esas, 2012/1183;
1- In the examination of the decision of the …5th Execution Criminal Court dated 10/07/2012 and numbered 2012/418 Esas, 2012/1183 regarding the defendant …;
In the follow-up file numbered 2010/24758 Esas of the …13th Execution Directorate carried out against the debtor defendants, in the 20/01/2011 commitment minutes containing the payment commitment of the defendants; As the collection fee to be paid by the debtor is not shown, “the interest debt to be processed according to the payment dates, the rights regarding the surplus remain. ”, it is understood that the commitment of the defendants is legally invalid in the face of the fact that there is uncertainty in the payment commitment, the total amount of debt to be paid for these reasons has not been calculated and clearly shown together with all its accessories, and it has not been found in the decision to convict the defendant as written instead of acquittal.
2- In the examination of the decision of the …1st Execution Criminal Court dated 01/10/2012 and numbered 2012/511 Different Business regarding the defendant M…;
In the follow-up file numbered 2010/24758 of the …13th Execution Directorate, which was carried out against the debtor defendants, in the 20/01/2011 commitment report containing the payment commitment of the defendants; As the collection fee to be paid by the debtor is not shown, “the interest debt to be processed according to the payment dates, the rights regarding the surplus remain. ”, it is understood that the commitment of the defendants is legally invalid due to the fact that the total amount of debt to be paid for these reasons is not calculated and clearly shown together with all its accessories, and that the decision to reject the objection in writing instead of accepting the objection is not deemed to be inaccurate, in accordance with Article 309 of the Code of Criminal Procedure No. 5271, it was requested to overturn the aforementioned decision, and the file sent to our Department was examined and discussed as required:
…In the payment commitment dated 20.01.2011 in the follow-up file numbered 2010/24758 Esas of the 13th Execution Directorate, the collection fee to be paid by the debtor is not clearly shown, the interest to be processed according to the payment dates is not calculated, the rights regarding the surplus are reserved, the total amount of debt is not clearly shown and the payment commitment is legally invalid due to the uncertainty in the payment commitment;
With the decision of the …1st Execution Criminal Court dated 19.03.2012 and numbered 2012/178 Amended Business; it was decided to accept the objection, and in accordance with Article 271/2 of the Criminal Procedure Law No. 5271, the authority that deems the objection appropriate must also make a decision on the subject of the objection. For this reason, since the transactions and decisions made later are null and void, it was unanimously decided on 16.05.2013 to refer the file to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the Ministry of Justice for the appreciation and execution of the necessity regarding whether to apply for reversal in favor of the law on the specified issue.