12. Legal Department 2018/15328 E. , 2018/13845 K.
“Text Of Jurisprudence”
COURT : Executive Civil Court
The file related to this work was sent from the scene to the apartment upon request by the creditor for the appellant’s examination within the time limit of the court decision written above, the report prepared by the Examining Judge … for the case file was heard and all the documents in the file were read and examined after the job was discussed and considered as necessary:
In the complaint of the debtor Lawyer; … The Bank … foreclosed on the bank account that has a branch and has money deposited on behalf of its clients in accordance with the profession of lawyer, where payments are made due to their profession, this is IIK 82/2. he requested that the liens be removed, stating that it was contrary to the article.
Upon the court’s decision to accept the complaint on the grounds that it is not possible to place a lien on the account subject to the complaint in accordance with the legal regulations, the judgment was appealed by the creditor’s attorney.
According to the principles of the Execution and Bankruptcy Code and the Follow-up Law, as a rule, the foreclosure of all the debtors’ property is possible, since the main thing is to ensure that the creditor receives the receivables. In order for a property not to be confiscated, it is necessary to have a legal regulation. Since non-foreclosure is an exceptional case, the regulations in this direction should also be interpreted narrowly.
In addition, 90/4 of the Constitution of the Republic of Turkey, which is the upper norm. in accordance with the article, the rule is given that the international treaties regulating the fundamental rights and freedoms that have been duly put into force are legal and should be observed in disputes.
Accordingly, October 1 of Protocol No. 1 to the European Convention on Human Rights. in its article; “… Every natural and legal person has the right to use what he owns peacefully. A person cannot be deprived of his property unless the public interest requires it and the general principles of International Law and the conditions sought by law are not complied with …”is included in the provision.
1. Concerning the right of ownership of the october protocol in the Law approved and approved by the Grand National Assembly of Turkey, the article states: “…Every genuine or genuine person has the right to respect the innocence (inviolability) of the goods. Any person may be deprived of his property only in the interests of amme and in accordance with the conditions established by the law and the general principles of the law of the States …”the principles are set out.
In the light of all these explanations, in the face of accepting the conditions of “actually being used for his profession” for non-foreclosure, the non-foreclosure of an account used by a lawyer in his profession should only be determined by determining its actual status. The burden of proof in this regard falls on the borrower. In other words, the debtor must prove that the foreclosed account is used for expenses arising from his profession. Otherwise, the complaint will have to be dismissed.
It is indisputable that the borrower who creates a pool account by mixing non-lienable money and lienable money will not be incompatible with good faith. Such a behavior is reflected in Article 6 § 1 of the ECHR of the ECHR. and October 1 of Protocol No. 1. it is certain that it will result in a violation of the articles of association, as well as an abuse of the right, which cannot be protected by law. In this case, the collection and mixing of the debtor’s non-lienable money and the money that can be liened in the same account should be considered a waiver of the right of non-lienability.
In concrete cases, foreclosures brought on account statements of expenditure view of nature that put you in the profession, which are necessary for tax payments, payments to the executive, in addition to the account that placed the lien of money as fees, personal fees, stationery, health services, food, bills .. as such, it was checked that expenses were also made from this account, it was understood that the foreclosed account was a pool account, and it was not used in the necessary way just for the need of the profession. As a result of the evaluation in accordance with the above-mentioned principles, a provision should be established for the rejection of the complaint, while the provision for its acceptance is incorrect.
CONCLUSION: The decision of the court on the acceptance of the creditor’s appeals is based on Article 366 of the IIK for the reasons written above. and HUMK’s 428. in accordance with the articles (DETERIORATION), the refund of the fee received in advance upon request was decided unanimously on 19/12/2018, with the path of decision correction open within 10 days from the notification of the decision.
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