Summary
also Competition Law and Insurance Law in detail. It aims at providing the reader
with a broad overview of the legal transactions that a business enterprise would
engage in.
Further, the book includes the theoretical foundation of Data Protection Law as
well as a framework for the compliance practices in this area. Another importance
of this book is that it covers new amendments to Turkish Constitution, which
provides individuals to apply to the Constitutional Court and will have an impact on
commercial activities.
Excerpt
Table Of Contents
- Cover
- Title
- Copyright
- About the editor
- About the book
- This eBook can be cited
- Editor’s Disclaimer
- Editor’s Note and Acknowledgments
- Contents
- List of Contributors
- Abbreviations
- Introduction
- Chapter I Constitutional Law (Assoc. Prof. Dr. Didem YILMAZ)
- Introductory Remarks
- § Part I The Essentials of the Political Structure According to the Constitution of 1982
- I. Constitutional Bodies of the Republic and Their Functions
- A. The Legislature and Legislative Power
- 1. The Structure and the Composition of the GNAT
- 2. Legislative Function
- 3. Legislative Process
- 4. Legislative Control over the Executive
- B. The Executive and Its Regulatory Powers
- 1. Formation of Executive
- 2. Criminal Liability of the Executive
- 3. Regulatory Power of the President
- 4. Budgetary Power of the President
- C. The Judiciary and Judicial Review
- 1. High Courts
- a. Overview
- b. The organization of judiciary
- 2. Constitutional Court
- a. Composition
- b. Functions
- II. Hierarchy of Legal Written Norms
- A. Constitutional Norms: Constitution, Constitutional Amendments, and Decisions of the Constitutional Court
- B. Legislative (Statutory) Norms: Laws, International Agreements (Ordinary) Presidential Decrees, Precedents of High Courts
- C. Administrative Regulations (Executive Sources): Presidential Decisions, By-Laws and Other Regulatory Sources
- § Part II Fundamental Rights and Freedoms
- I. General Provisions
- A. Nature
- B. Equality Before the Law and Prohibition of Discrimination
- C. State Obligations to Protect Rights and Freedoms
- D. Restriction Clauses
- E. Prohibition of Abuse
- II. Social and Economic Rights and Freedoms
- A. General Overview
- B. Right and Freedoms Directly Related to Business Law
- III. Protection of Fundamental Rights by Individual Application before the Constitutional Court
- Chapter II Law of Persons (Prof. Dr. Aslı MAKARACI and Assoc. Prof. Dr. Seda ÖKTEM ÇEVİK)
- Introductory Remarks
- § Part I General Remarks on the Turkish Civil Code
- I. Overview
- II. General Principles
- § Part II Essentials of Law of Persons
- I. Natural Persons
- A. Beginning and End of Personality
- 1. Beginning of Personality
- 2. End of Personality
- a. Death
- b. Presumption of death
- c. Declaration of presumption of dead in absentia (Disappearance)
- B. Registry of Personal Status
- C. Persons of Subject of Rights: Capacity
- 1. The Capacity to Be the Subject of Rights (Legal Capacity)
- 2. The Capacity to Act
- a. Conditions
- aa. Majority
- bb. The capacity of judgment
- Chapter III Law of Obligations (Prof. Dr. Aslı MAKARACI and Assoc. Prof. Dr. Seda ÖKTEM ÇEVİK)
- Introductory Remarks
- § Part I The General Provisions of Obligation Law
- I. Overview
- II. Contract: As a Source of Obligation
- A. Concept of Contracts
- B. Formation of Contract
- 1. Offer
- 2. Acceptance
- 3. Standard Terms
- 4. Form of Contracts
- C. Interpretation of Contracts
- D. Validity of the Contracts
- 1. Generally
- 2. Mistake, Fraud and Duress
- a. Mistake
- aa. Mistake in expression
- bb. Mistake in motive
- b. Fraud
- c. Duress
- 3. Unfair Advantage
- E. Representation (Agency)
- 1. Effect of the Representation
- 2. The Expiration of the Representation
- F. Performance of the Contract
- G. Default of the Obligee
- H. Non-Performance of the Contract
- 1. Generally
- 2. Default of the Obligor
- a. General rule
- b. Consequences of default of obligor for bilateral contract
- 3. Contractual Penalty
- I. Extinction of Obligations
- 1. Extinction by Agreement
- 2. Novation
- 3. Merger
- 4. Impossibility (Performance Becomes Impossible)
- 5. Hardship (and Disappearance of the Contractual Basis)
- 6. Set-Off
- 7. Prescription
- J. Joint and Several Obligationship
- K. Assignment of Claims and Assumption of Debts
- § Part II The Special Provisions of Obligation Law
- I. Overview
- II. Contracts Providing Transfer of Ownership
- III. Contracts Providing Transfer of the Right of Usage and Benefit
- IV. Service Contracts
- V. Security Contracts
- VI. Consumer Protection Law
- Chapter IV Employment Law (Asst. Prof. Dr. Şebnem KILIÇ)
- Introductory Remarks
- § Part I Essentials of Employment Law
- I. Historical Background of Employment Law
- II. The Position of Employment Law as to the Division of Law
- III. The Development of Turkish Employment Law
- A. Milestones in the History of Turkish Employment Law
- 1. Reform Period
- 2. Constitutional Monarchy Period
- 3. Republican Period
- 4. Constitution of 1961
- 5. The Current Situation
- B. General Remarks on Turkish Employment Law
- 1. The Major Laws for Employment
- a. The Turkish Code of Obligations
- b. The Act on Employment Courts
- c. The Occupational Health and Safety Act
- d. The Act on Trade Unions and Collective Bargaining Agreements
- e. The Labor Act
- 2. Basic Principles of Employment Law
- a. The principle of protection of the employees
- b. The principle of restricted freedom of contract
- c. Principle of adaptation
- d. The complementary principle of interpretation: Interpretation in favor of the employee
- IV. The Legal Sources of Employment Law
- A. Official Sources
- 1. Constitution
- 2. Statutory Sources
- a. National sources
- b. International sources
- 3. Regulatory (Executive) Sources
- a. By-laws
- b. Other regulatory sources
- 4. Judicial Sources
- B. Unofficial Sources
- 1. Collective Bargaining Agreements
- 2. Individual Employment Contracts
- 3. Workplace Regulations (Internal Regulations)
- 4. Entrenched Workplace Practices
- 5. Right to Manage of the Employer
- § Part II Basic Concepts, Coverage and Employment Contract
- I. The Concept of the Employee
- A. The Definition of the Employee
- B. Fact-Checking
- C. Current Debates
- II. The Concept of the Employer
- A. Definition of the Employer
- B. The Representative of the Employer
- C. The Definition of the Sub-Contractor
- III. The Concept of Workplace
- A. Definition of Workplace
- B. Transfer of Workplace
- IV. Form and Substance, and Types of Employment Contract
- A. Substance of Employment Contract
- B. Form of Contract
- C. Types of Employment Contract
- 1. Definite Term and Indefinite Term Contracts
- 2. Part-Time and Full-Time Contracts
- 3. Employment Contracts with Trial Clause
- V. The Scope of the Labor Act (no. 4857)
- VI. The Obligations of the Contracting Parties
- A. The Obligations of the Employee
- 1. Obligation to Perform a Job/Work or a Task (Principal Obligation)
- 2. Obligation to Obey
- 3. Duty of Loyalty (Obligation to Be Loyal)
- B. The Obligations of the Employer
- 1. The Obligation to Pay Wage (Principal Obligation)
- a. General overview
- b. Legal consequences of non-payment
- 2. The Obligation to Protect the Employee
- a. The obligation to take occupational safety and health measures
- b. The obligation to inspect
- c. The obligation to provide training
- 3. The Obligation of Equal Treatment
- § Part III Working Conditions
- I. The Legal Regulations on Working Time
- A. Normal Working Time
- B. Shift Work and “Balancing (Equalization) of the Working Hours” (WTAs)
- C. Overwork Time and Work at Extra Hours
- 1. The Classification of Overtime Work
- 2. The Legal Requirements and the Limits
- 3. The Legal Consequences of Overtime Work
- II. The Legal Regulations on Rest Periods
- A. Rest Periods
- 1. Daily Break (Work Break)
- 2. Week Holiday
- 3. National Holiday and Public Holidays
- B. Annual Paid Leave
- 1. Length and Entitlement
- 2. The Conversion of Unused Annual Paid Leaves into Money
- III. Legal Regulations on the Change in Working Conditions
- § Part IV Termination of the Employment Contract
- I. Extinction Other than Termination
- A. Extinction by Agreement (İkale)
- B. Expiration of Specific Period (for Definite Term Contracts)
- C. The Death of the Employee
- II. Extinction by Termination of the Contract
- A. Termination with Just Cause
- 1. The Cases for Termination with Just Cause for the Employee (art. 24 of LA)
- a. Cases of health concerns
- b. Cases of immoral, dishonorable, or malicious conduct, and alike
- c. Cases of compelling reasons (force majeure)
- 2. The Cases for Termination with Just Cause for the Employer (art. 25 of LA)
- a. Cases of health concerns
- b. Cases of immoral, dishonorable, or malicious conduct, and alike
- c. Cases of compelling reasons (force majeure)
- 3. The Procedure for Termination with Just Causes
- B. Unjust Termination
- C. Termination at Will
- 1. The Notice (Notification) Period
- 2. Malevolence Compensation (In the Case of Abusive Termination)
- III. Termination of the Contract in Case of Employment Security
- A. The Requirements for Employment Security
- 1. Exclusion of Certain Categories of the Employees or the Enterprises
- 2. Justification for Termination and Invalid Reasons
- a. The valid reasons connected with the conduct and performance of the employees
- b. The reasons connected with the operational requirements of the enterprise, the workplace or the work
- c. Invalid reasons for termination
- 3. Notice of Termination
- 4. The Requirement on Taking Measures to Avert Termination (Ultima ratio Principle)
- 5. Burden of Proof
- B. Proceeding against Invalid Termination
- C. Legal Consequences of Invalid Termination
- IV. Severance Pay
- A. Requirements for Severance Pay
- 1. Seniority of Minimum One-Year
- 2. Special Cases Defined by Law
- a. The termination with just cause by the employee
- b. The termination by the employer excluding the cases listed in the art. 25/II of LA
- c. The peculiar conditions
- B. Amount of Severance Pay
- C. Interest Rate for Late Payment
- D. Prescription Period
- V. Concluding Remarks
- Chapter V Commercial Law (Asst. Prof. Dr. Ayşe ŞAHİN and Asst. Prof. Dr. Tuğba SEMERCİ VURALOĞLU)
- Introductory Remarks
- § Part I Law of Commercial Enterprise
- I. Commercial Law Theories and the Historical Background of Commercial Law
- II. The Main Pillars of the Law of Commercial Enterprise
- A. The Commercial Enterprise
- 1. The Importance of Commercial Enterprise
- 2. Definition and Legal Nature
- 3. Transfer of the Commercial Enterprise
- a. Introduction
- b. Main traits of the transfer
- c. Legal consequences of a transfer
- 4. Pledge on Movables in Commercial Transactions
- a. Pledge through registration
- b. The “New Code”
- c. The scope of the new commercial pledge
- d. Foreclosure possibilities
- B. Title of Merchant and Related Consequences
- 1. The Title of “Merchant”
- a. For natural persons
- b. For legal persons
- c. For association of shipowners
- d. For dominant undertakings
- 2. Loss of the Title of “Merchant”
- 3. Consequences of Being “Merchant”
- a. Being subject to insolvency
- b. Registration to the commercial register
- c. Registration to the Chambers and Unions
- d. Obligation to choose and use a business name
- e. Subject to the presumption of commercial affair
- f. Being subject to commercial customs
- g. Keeping commercial books
- h. Acting as a prudent businessperson
- i. The right to claim fees and interest
- j. Lack of right to request reduction of fees and penal clauses
- k. Invoicing
- l. Objection to invoice and confirmation letter
- m. The requirement to follow form for the certain notices and warnings
- n. Facility in exercising the right to retain
- o. Being subject to special provisions in commercial sales and exchange of goods contracts
- p. Being subject to special provisions in transactions between commercial enterprises for the purpose of supply of goods and services
- r. Opportunity to make a jurisdiction agreement
- C. Merchant Assistants
- 1. Dependent Assistants
- a. Commercial representative
- b. Commercial agent
- c. Commercial traveller
- 2. Independent Assistants
- a. Agent
- b. Broker
- c. Commissioner
- d. Transport commissioner (Freight forwarder)
- D. The Unfair Competition Rules
- 1. General Remarks
- 2. The Unfair Business Practices (TCC 55)
- 3. The Sanctions of the Unfair Business Practices
- a. Types of legal actions and the civil liability claims
- b. Parties of the legal action
- c. Criminal liability
- d. Prescription
- § Part II Essentials of Turkish Company Law
- I. General Remarks on Turkish Company Law
- A. Legal Types of Companies in Turkish Law
- B. The Principle of “Limited Liability” and “Lifting the Corporate Veil” as an Exception
- C. Group of Companies
- II. The Life Cycle of a Company
- A. How is a Company Managed? “Organs of a Joint Stock Company”
- 1. Division of Labor
- 2. The Board of Directors
- a. Organizational Structure of the Board of Directors
- aa. Appointment and Dismission
- bb. The Composition and the Organizational Structure
- b. The Power and Duties of the Board of Directors
- aa. The Overall Management and Direction
- bb. Delegation of the Power and Duties
- cc. Representation of the Company
- c. Board Meetings
- d. Rights and Obligations of Directors of the Company
- e. Sanctions
- aa. Liability of the Board of Directors
- bb. Invalidity of BoD Decisions
- cc. Conflict of interests (prohibition of participating proceedings TCC 393)
- 3. General Assembly
- a. Duties and powers
- b. The GA meetings
- aa. Meeting Types, Time, Place and Agendas
- bb. Authorized Persons to Call the GA to the Meeting
- cc. Convocation Form
- dd. Authorization to Attend the GA Meetings, List of Attendees and Voting Rights
- ee. Representation and Types of Representation in the GA Meetings
- ff. Quorums in the GA Meetings
- gg. How to Conduct the GA Meetings
- c. Invalidity of the GA resolutions
- aa. Inexistence
- bb. Nullity
- cc. Pending Invalidity
- dd. Action for Annulment
- ee. What are the Conditions and Terms of the Litigation?
- 4. Shareholders’ Rights and Obligations
- a. Obligations of the shareholders
- aa. Capital Debt (Single Debt Principle)
- bb. Secondary Liabilities (Incidental Duties)
- cc. Loyalty Obligation
- dd. Confidentiality Obligation
- b. Rights of the shareholders
- aa. In Terms of Qualifications
- bb. In Terms of Usage
- 5. Securities
- a. Classification of Securities
- b. Issuing Share Certificates
- aa. General Remarks
- bb. Issuing Bearer Share Certificates (The recent amendment)
- cc. Issuing Registered Share Certificates/Temporary Share Certificates
- c. The Modality of the Transfer
- d. Restrictions on the Transferability
- aa. Restrictions Arising out the Law
- bb. Statutory Restrictions
- 6. Dissolution of Joint Stock Companies
- a. The Dissolution Phase
- aa. Meaning of Dissolution, General Dissolution Grounds and Other Provisions
- bb. Specific Dissolution Grounds
- b. Liquidation Procedure
- Chapter VI Competition Law (Assoc. Prof. Dr. Zafer KAHRAMAN)
- Introductory Remarks
- § Part I Introduction
- I. Overview
- II. Legislation
- III. Salient Features of the Turkish Competition Law
- A. The Purpose
- B. The Scope
- C. The Focus
- IV. The Competition Authority (TCA)
- § Part II Undertaking
- I. The Legal Definition
- II. The Elements
- A. Economic Activity
- B. Economic Unit
- C. Independent Decision-Making
- § Part III Relevant Market
- I. In General
- II. Market Definition
- A. Information Gathering Process
- B. Criteria
- C. Factors for the Definition of Relevant Product Market
- 1. eatures of the Products
- 2. Findings Indicating the Products Substituted Each Other in the Recent Past
- 3. Quantitative Tests Specifically Developed for Determining the Market
- 4. Opinions of the Customers and Competitors
- 5. Costs and Barriers (Related to Switching the Demand to Potential Substitute Products)
- 6. Supply Substitution Analysis
- D. Factors for the Definition of Relevant Geographic Market
- 1. Market Features
- 2. Findings that Indicate Orders were Switched to Different Regions in the Past
- 3. Quantitative Tests Specifically Developed for Determining the Market
- 4. Opinions of Customers and Competitors
- § Part IV Prohibition on Cartels
- I. Introduction
- II. Markets Prone to Cartels
- III. Prohibition
- A. Legislation
- B. Anti-Competitive Agreements
- 1. In General
- 2. Horizontal Agreements
- 3. Vertical Agreements
- C. Concerted Practices
- 1. In General
- 2. Elements of Concerted Practices
- a. Parallel anti-competitive action of plural undertakings
- b. Intentional harmonization of behaviors
- 3. Presumption
- 4. Examination of Oligopolistic Interdependence
- D. Decisions by Association of Undertakings
- IV. Exemption
- A. Legislation
- B. Definition
- C. Conditions of the Exemption
- D. Block Exemptions
- V. Active Cooperation for Detecting Cartels
- A. Introduction
- B. Regulation
- VI. De Minimis Rule
- § Part V Prohibition on Abuse of Dominant Position
- I. Introduction
- II. Legislation
- III. Definition and Elements of the Dominant Position
- A. Definition
- B. Elements
- C. Collective (Joint) Dominance
- IV. Detection of the Dominant Position
- A. In General
- B. Barriers to Entry
- 1. Legal Barriers to Entry
- 2. Economic Barriers to Entry
- V. Abuse of Dominant Position
- § Part VI Control of Concentrations
- I. Introduction
- II. Legislation
- III. Cases Considered as a Concentration
- IV. Concentrations Subject to Authorization
- V. Procedure
- VI. Assessment
- VII. Remedies
- VIII. Types of Acceptable Proposed Remedies
- § PART VII Sanctions, Fines, Remedies
- I. Procedure
- II. Private Law Remedies against Limiting Competition
- III. Administrative Fines
- A. Sanctions against Misleading Information or Complicating Investigation
- B. Sanctions against Prohibited Anti-Competitive Behaviors
- C. Proportional Administrative Fines
- IV. Base Fine, Aggravating Factors and Mitigating Factors
- A. Base Fine
- B. Aggravating Factors
- C. Mitigating Factors
- D. Fines to be Applied to Managers and Employees
- Chapter VII Insurance Law (Asst. Prof. Dr. Evrim AKGÜN)
- Introductory Remarks
- § Part I General Information on Insurance and Insurance Contract
- I. Historical Background of Insurance
- II. Sources of Insurance Law
- A. Legislation
- B. By-Laws
- C. General Terms and Conditions of Insurance (Sigorta Genel Şartları)
- D. Special Terms
- E. Judicial Sources
- III. Definition of the Insurance Contract
- IV. Essential Elements of the Insurance Contract
- A. Insurable Interest
- B. Risk
- V. Categories of Insurance Contracts
- A. Insurance of Fixed Sums – Indemnity Insurance
- B. Active Insurance – Passive Insurance
- C. Compulsory Insurance – Voluntary Insurance
- D. Indemnity Insurance – Insurance of Persons
- § Part II Conclusion of the Insurance Contract
- I. Offer and Acceptance
- II. Form of the Contract
- III. Parties of the Insurance Contract
- A. Insurer
- B. Policyholder
- C. Relevant Third Parties
- 1. Insured (in Indemnity Insurance)
- 2. Insured (in Life Insurance)
- 3. Beneficiary
- 4. Affected Party (in Liability Insurance)
- 5. New Holder of Insured Interest
- 6. Holder of the Right in rem
- IV. Legal Restrictions on Insurance Contract
- V. Burden of Proof
- VI. Concluding the Contract with the Assistance of the Insurance Intermediaries
- A. Insurance Agent
- B. Insurance Broker
- § Part III Duties and Obligations of the Parties
- I. Insurer’s Duties and Obligations
- A. Obligation to Carry the Risk (Art. 1421–1422 of TCC)
- B. Pre-Contractual Information Duty (Art. 1423 of TCC)
- C. Obligation to Deliver the Insurance Policy (Art. 1424–1425 of TCC)
- D. Obligation to Pay Expenses (Art. 1426 of TCC)
- E. Obligation to Pay Indemnity or Fixed Sum (Art. 1427–1429 of TCC)
- II. Policyholder’s Duties and Obligations
- A. Obligation to Pay Premium (Art. 1430–1434 of TCC)
- B. Duties
- 1. Duty of Disclosure
- a. Before concluding the contract
- b. During the contract period
- c. At the time of materialization of the risk
- 2. Duty to Provide Information and Allow Investigation
- 3. Duty to Prevent, Mitigate the Loss and Protect the Insurer’s Right of Subrogation (Art. 1448 of TCC)
- 4. Duty to Refrain from Changes to Damaged Goods and The Place of Occurrence (Art. 1471 of TCC)
- 5. Contractual Duties
- III. The Impact of the Insured, Beneficiary and Representative’s Knowledge and Behavior
- § Part IV Extinction of the Insurance Contract and the Outcomes
- I. Extinction of the Insurance Contract
- A. Extinction of contract by termination
- B. Withdrawal
- C. Expiry
- D. Agreement
- E. Materialization of the Risk
- F. Lack of Insurable Interest
- II. Prescription Period
- III. Subrogation of the Insurer
- § Part V Special Types of Insurance Contract
- I. Theft Insurance
- II. Fire Insurance and Fire-Related Profit Loss Insurance
- III. Liability Insurance
- Chapter VIII Personal Data Protection Law (Asst. Prof. Dr. Elif KÜZECİ)
- Introductory Remarks
- § Part I The Necessity of Personal Data Protection Legislation and Historical Background
- I. The Necessity of Personal Data Protection
- II. Historical Background of Personal Data Protection
- § Part II The Development of Turkish Data Protection Law
- I. Turkish Constitution
- II. Turkish Penal Code and Turkish Civil Code
- III. Personal Data Protection Act
- § Part III The Personal Data Protection Act of Turkey
- I. Basic Concepts of Personal Data Protection Law
- A. Personal Data
- B. Sensitive Data
- C. Processing Personal Data
- D. Data Subject, Data Controller and Data Processor
- II. Basic Principles of Personal Data Protection Law
- A. Lawfulness and Fairness Principle
- B. Accuracy Principle
- C. Purpose Limitation Principle
- D. Data Minimization Principle
- E. Retain Limitation Principle
- III. Legal Conditions to Process Personal Data
- A. Explicit Consent
- B. Data Processing Conditions Without Explicit Consent
- 1. Envisaged by Law
- 2. Vital Interest
- 3. Contractual Necessities
- 4. Legal Obligations
- 5. Disclosure of Personal Data by the Data Subject
- 6. Establishment, Exercise or Protection of a Right
- 7. Legitimate Interests of Data Controller
- C. Data Processing Conditions for Sensitive Data
- D. Transfer of Personal Data Abroad
- E. Data Security
- IV. Enforcement System
- A. Compensation
- B. Administrative Fines
- C. Sanctions
- 1. Recording Personal Data
- 2. Giving, Disseminating and Seizing Personal Data
- 3. Not Destroying Personal Data
- Index
List of Contributors
Assistant Prof. Dr. Evrim AKGÜN
Maritime and Insurance Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: evrim.akgun@law.bau.edu.tr. ORCID ID: 0000-0002-4085-6503.
Associate Prof. Dr. Zafer KAHRAMAN
Civil Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: zafer.kahraman@law.bau.edu.tr. ORCID: 0000-0002-9303-1062.
Assistant Prof. Dr. Şebnem KILIÇ
Labor and Social Security Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: sebnem.kilic@law.bau.edu.tr. ORCID: 0000-0003-3186-8518.
Assistant Prof. Dr. Elif KÜZECİ
Public Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: elif.kuzeci@law.bau.edu.tr. ORCID: 0000-0002-3723-8421.
Prof. Dr. Aslı MAKARACI
Civil Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: asli.makaraci@law.bau.edu.tr. ORCID: 0000-0002-8854-914X.
Associate Prof. Dr. Seda ÖKTEM ÇEVİK
Civil Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: seda.oktem@law.bau.edu.tr. ORCID: 0000-0002-9253-475X.
Assistant Prof. Dr. Tuğba SEMERCİ VURALOĞLU
Commercial Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: tugba.semercivuraloglu@law.bau.edu.tr. ORCID: 0000-0002-0575-0746.
Assistant Prof. Dr. Ayşe ŞAHİN
Commercial Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: ayse.sahin@law.bau.edu.tr. ORCID: 0000-0003-1544-4846.
Associate Prof. Dr. Didem YILMAZ
Constitutional Law, Bahçeşehir University Law Faculty, Istanbul, Turkey.
E-mail: didem.yilmaz@law.bau.edu.tr. ORCID ID: 0000-0001-5354-4114.
Introduction
This book is intended to be of interest to those concern with the legal essentials of Turkish Business Law, including to legal practitioners who engage in business practices internationally as well as to the students who need to acquire general legal knowledge. Therefore, the contributors are encouraged to address this broad audience. We hope that the outcome will appeal to readers from all walks of business life.
In the academic sphere, the book provides a comprehensive conception and normative information on Turkish private law, including Law of Persons and Law of Obligations, Commercial Law, Employment Law, and addresses understudied areas of Business Law such as Data Protection Law, Insurance Law, Competition Law, and the effects of Constitutional Law on Turkish private law.
It also involves legal amendments and juridical developments, notably in the fields of Employment Law, Data Protection Law, and Competition Law in addition to being explanatory in character. Since Business Law is often considered as a subset of private law, this book takes a unique approach by covering new amendments to the Turkish Constitution, which allow individuals to apply to the Constitutional Court and will have an impact on business practices.
Also, the structure aims to provide a simple, coherent framework to the reader. Each chapter commences with an introductory remark by depicting the content and frames the main bibliography in the very beginning. The reader who demands more in-depth knowledge can benefit from the list of further reading at the end of chapters.
Overall, the book is prepared to provide a clear and comprehensive view of the key aspects of Turkish Business Law. Therefore, it involves the relevant chapters to cover the business practices as a whole and aims to help the reader to acquire a general understanding of the subject matters.
The authors of all the chapters, who are my colleagues, are the ones who have an excellent command of the subjects in their respective fields and even pioneering the concepts that they work for Turkish law. We hope that for many years to come, this compilation will serve as a standard reference book for a broad audience.
Chapter I Constitutional Law
Aybay, Rona. An Introduction to Law. İstanbul: Der Yayınları, 2020; Gözler, Kemal. Türk Anayasa Hukuku. Bursa: Ekin, 2020; Özbudun, Ergun. Türk Anayasa Hukuku. Ankara: Yetkin, 2020; Özbudun, Ergun. “Constitutional Law.” In Introduction to Turkish Law, 21–48. Edited by Ansay, Tuğrul, Wallace Jr., Don and Önay, Işık. 7th ed. Ankara: Seçkin, 2020; Tanör, Bülent and Yüzbaşıoğlu, Necmi. 1982 Anayasası’na Göre Türk Anayasa Hukuku. İstanbul: Beta, 2020; Teziç, Erdoğan. Anayasa Hukuku. İstanbul: Beta, 2020.
Introductory Remarks
As the other parts of social life, the relationships between employers and employees fall under the rules enshrined by the Constitution. The state has the regulatory and oversight power on business activities. It protects, on one hand, the workers’ rights and freedoms and, on the other hand, it takes actions to promote the private business activities, thus economic development of the state. The fruitful economic development either of the state or that of the private sector depends on the constitutional structure of the given state.
Modern states, emerged in 16th century, became constitution-based political structures with the effort of constitutionalism movements. This constitutional structure was formed in order to protect individual liberties from any arbitrary interference by the state. The constitutions, by creating the institutionalized state authority, became also the ultimate source of the political power exercised by the state’s organs. Hence, the political power that dominates all the social life must be used in conformity with the constitution of each state.
In this chapter, it will be presented a general overview on the political structure and the principal characteristics and protection mechanisms of the fundamental rights and freedoms in Turkish constitutional system. The aim is to highlight the constitutional limits of the political power exercised by states organs and to give basic information on the protection of rights and freedoms especially related to business life.←39 | 40→
§ Part I The Essentials of the Political Structure According to the Constitution of 1982
The political structure and fundamental liberties were prescribed in the Constitution, which was enacted in 1982 aftermath of the military intervention occurred on 12 September 1980. This is the current and the third Constitution of the Republic and was amended nineteen times.1
The article 2 of the Constitution stipulates the fundamental principles of the Republic: The Republic, respectful to human rights, is a secular, democratic and social state based on the rule of law. The republican form of government (art. 1), its constitutional qualities (art. 2), and the provisions on the flag, official language and anthem, on capital city, and the unity of the state are unamendable (art. 4).
The Constitution begins with a Preamble, which indicates the basic views and principles that the Constitution is based on. As an integral part of the Constitution, the Preamble is binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals (art. 156).
I. Constitutional Bodies of the Republic and Their Functions
A. The Legislature and Legislative Power
The Grand National Assembly of Turkey (GNAT) is vested the legislative authority which can be delegated to neither any other institution nor any branch of government (arts. 6 and 7). It has the supreme power to enact, amend or repeal the laws (art. 87), to supervise and control the executive power (arts. 98, 105, and 106), also it is the only authority empowered to amend the Constitution (art. 175).
The constitutional structure of the Republic was founded upon the legislature. Therefore, the supremacy of the GNAT is still a constitutional principal dated back to the foundation of the Republic. The first Constitution (1924) of the Republic had stipulated that the GNAT was the one and the only representative ←40 | 41→of the national sovereignty. This principle establishing a unity or a concentration amongst the legislative, the executive and even the judiciary power2 was modified by the Constitution of 1961,3 which made the GNAT one of the organs entitled to use sovereign power along with others. Thereof, by distributing the sovereignty across the constitutional organs, this Constitution established true separation of powers in Turkish constitutional system for the first time in the history.
1. The Structure and the Composition of the GNAT
Unlike the previous Constitution (1961), the current Constitution (1982) has created a unicameral legislature. The number of deputies is determined in the Constitution (art. 75). Accordingly, the GNAT is composed of 600 deputies elected by popular vote. Elections for the GNAT and presidential elections are held every five years and on the same day. Every Turkish citizen, who fulfills the other legal conditions and is over the age of 18, enjoys the right to elect and be elected (art. 67).
An early election can be initiated either by the GNAT itself or by the President. The former may decide to renew the election on condition of three-fifth majority; the latter may call to election at any time without any condition. In both circumstances, the general and presidential elections are held on the same day. The Constitution provides that if the decision of renewal is initiated by the GNAT when the President enjoys the second term, then the President may be run for a third term (art. 116).
2. Legislative Function
The legislative power is vested in the GNAT, which means that following the Constitution, the legislative power is the primary source of general national legal norms. The legislative authority does not have any exclusive legislative domain. All social, economic and political issues can be enacted by the legislature provided that they are in conformity with the Constitution. The latest constitutional ←41 | 42→amendment of 2017 brought a slight modification on that issue which will be explained below.4
Beside its law-making function, the GNAT has the power to oversight the executive by several means such as written question, general debate, parliamentary investigation and parliamentary inquiry.5 Only the parliamentary inquiry may cause criminal liability of the executive, i.e., the President, the deputy presidents and the ministers. The other means serve the GNAT to obtain information as to the general policy from the deputy president and ministers.
3. Legislative Process
All deputies are empowered to introduce bill. The President of the GNAT sends the bill to relevant legislative commission, where it is debated for maximum of 45 days and then forwarded to the President of the GNAT attached with a report. The agenda of the GNAT is set by the President of the GNAT.
The quorum for a meeting of the GNAT shall be at least one-third of the total number of members (art. 96). Unless otherwise stipulated in the Constitution, the GNAT makes decisions by absolute majority of those who are present in the general assembly. However, the quorum for decision making cannot, under any circumstances, be less than one plus a quarter of the total number of members.
The President of the Republic either promulgates the laws adopted by the GNAT within 15 days or returns the laws to the GNAT for reconsideration. If the GNAT adopts the law without any amendment and by absolute majority, the President of the Republic shall promulgate the law. However, if any amendments are made on the law by the GNAT, this time, the President of the Republic may return the amended law to the GNAT for reconsideration again.
4. Legislative Control over the Executive
Before the last constitutional amendment, the Council of Ministers was bearing political and criminal responsibility, and the President of the Republic was responsible only for criminal matters regarding their duties. This kind of ←42 | 43→responsibilities was a corollary of the parliamentary system of government. After the establishment of a different kind of presidential system in 2017, the only means that the GNAT holds is the parliamentary inquiry of the President, the deputy presidents and the ministers as prescribed in the articles 105 and 106.6
Along with the parliamentary inquiry, members of the GNAT may use several means of parliamentary oversight. According to the article 98, written question is a way of oversight asked by the deputies to the deputies of the President of the Republic or to the ministers in a written form, which is to be answered no later than 15 days. Also, political party groups or at least twenty of the deputies may request opening a general debate on a matter concerning the community and the activities of the state or they may give a motion of parliamentary investigation. The parliamentary investigation is an examination conducted to gather information on a specific matter by a commission formed on this purpose. The main difference of those oversight means from the parliamentary inquiry is that none of them may target directly the President.
B. The Executive and Its Regulatory Powers
The executive power and function is exercised and carried out by the President of the Republic. The executive is not only bound by law but also by the Constitution. According to the article 8 of the Constitution, the executive power must be exercised in conformity with the Constitution and laws.
The President of the Republic assumes the authority of being the head of the state and represents the Republic of Turkey and the unity of the Turkish nation. The President ensures the implementation of the Constitution and functioning of the organs of the state orderly and harmoniously.
The monarchical system of the Ottoman Empire was faded during the war of independence and it was officially terminated in 1922. This transformation on the political governance, which was founded upon the supremacy of the nation represented by the Assembly, was apparent even in the first constituent assembly gathered in 1920. The supremacy of the nation represented by the Assembly has been embedded in the constitutional political structure since then. But the executive, by the virtue of the majority rule in the GNAT, became indirectly the primary political organ regardless of the principle of the legislative supremacy written in those constitutions explicitly.7 The first military intervention of 27 May 1960 was due to this political shift between the legislative and the ←43 | 44→executive. The Constitution of 1961, by intending to frame the executive with the legislative, had established a very fragile relationship between the GNAT and the executive. This Constitution remained in force for 19 years and it was altered by the current Constitution after the second military intervention. The National Security Council, who executed the intervention was in favor of the idea of the strengthening the state, that is the executive, eventually the President of the Republic. It can be asserted that the constitutional amendments on the popular vote for the presidency in 2007 and on the modification of the political system in 2017 stay in the line with this political choice.
The current Constitution adopted following the military intervention of 1980 empowered the political position of the President within the constitutional structure. Political impartiality and non-accountability, the main principles of the former Constitution (1961) of the Republic were weakened by the current Constitution. The President of the Republic was empowered to order and to decide unilaterally on the matters specified in the Constitution without any judicial review. In 2007, after a political crisis triggered during the presidential election, the majority group at the GNAT adopted a constitutional amendment on the popular election of the President of the Republic. Approved at the constitutional referendum held on 21 October 2007 by a 68.95 % majority, this amendment reinforced the political position of the President with numerous unilateral powers exempt from judicial review. This modification led a controversial situation between the Prime Minister and the President who was general president of the political majority. The failed attempt of military intervention occurred in the summer 2016 beget a new amendment that finalized the creation of a powerful executive with the President at the head. Elected by popular vote, the President is no longer required to leave the political membership of their party and is entitled to a very crucial power to intervene to the legislative power.
1. Formation of Executive
Since the constitutional amendment of 2007, the President of the Republic is directly elected by popular vote amongst Turkish citizens over 40 years of age who are eligible to be a deputy and have completed higher education. The President of the Republic’s term of office is 5 years for two terms at most. The first presidential election was held in 2014.
The latest amendment of 2017, which changed the political system, also amended the procedures for the candidacy. The President of the Republic may be nominated by political party groups, political parties which received at least 5 % of valid votes on their own or collectively in the latest parliamentary elections, ←44 | 45→or through the petitions of at least one hundred thousand voters. In presidential elections, the candidate who receives the absolute majority of the valid electoral votes is considered the President elect. If absolute majority cannot be obtained in the first ballot, the second ballot shall be held on the second Sunday following the former one. Two candidates who received the greatest number of electoral votes in the first ballot shall run for the second ballot, and the candidate who receives majority of valid electoral votes shall be the President of the Republic. If one of the candidates, who is eligible the right to run for the second ballot, becomes unable to participate in the election for any reason, the second ballot shall be conducted by substituting the vacant candidacy in conformity with the ranking in the first ballot. If only one candidate remains for the second ballot, this ballot shall be conducted as a referendum. The candidate, who receives the majority of the valid electoral votes, shall be elected President of the Republic. If this candidate fails to receive the majority of the valid electoral votes in the election, the presidential election shall be renewed.
The President may appoint one or more deputies and minister among those who are eligible to be a deputy, without any approval of the Assembly but they are obliged to take oath before the GNAT. If a member of the GNAT is appointed as a deputy president or minister, their membership of the GNAT becomes terminated, and their seats remain vacant. The deputies of the President and the ministers are accountable to the President of the Republic, who has authority to remove them from the office.
Details
- Pages
- 490
- Publication Year
- 2022
- ISBN (PDF)
- 9783631874202
- ISBN (ePUB)
- 9783631874219
- ISBN (MOBI)
- 9783631874226
- ISBN (Hardcover)
- 9783631848890
- DOI
- 10.3726/b19466
- Language
- English
- Publication date
- 2022 (May)
- Published
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2022. 490 pp., 19 tables.
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