The Validity Conditions Of The Commitment

04 May The Validity Conditions Of The Commitment

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T.C.
SUPREME
19. CRIMINAL DEPARTMENT
PRINCIPAL NO. 2016/13073
DECISION NO. 2017/2290
DECISION DATE. 16.3.2017

340 of the execution and Bankruptcy Act 2004 of the defendant …for violation of the debtor’s payment requirement. in accordance with Article 3 pressure imprisonment for up to a month on the punishment of Alanya 1. The execution Criminal Court’s decision of 2013/957, 2014/104, dated 13/02/2014, and again with the same defendant’s decision of the execution and Bankruptcy Act of 2004 No. 340. in accordance with the Article 3 up to a month of pressure confinement and punishment of Alanya 2. Alanya 1 on the rejection of the appeal against the decision of the Enforcement Criminal Court dated 30/10/2014 and dated 2014/1084, 2014/1484. Court of execution Criminal Court dated 17/11/2014 and 2014/141 amended Labor No. 31/07/2016 days and 94660652-105-07-4589-2016-article containing the request to disrupt the court of justice against the Law No. 02/09/2016 days of the Supreme Court of public prosecutor’s office and PUK.It was read to be sent to our apartment with notice no.2016-333621.

According to the file, the defendant’s Alanya 2. Execution Directorate is owed in execution follow-up File No.2012/9339, during the foreclosure dated 12/02/2013 will pay the entire debt on 30/04/2013 made a bet, but on the breach of the commitment Alanya 1. Execution Criminal Court’s decision dated 13/02/2014 and 2013/957 basis, 2014/104 was punished with pressure imprisonment and the decision was finalized without appeal, then again on 14/05/2014, this time during the foreclosure on 14/06/2014 will pay the entire debt for a second time with the bet, but again on the breach of the commitment, this time Alanya 2. If it is understood that the execution Criminal Court’s decision no: 2014/1084, 2014/1484, dated 30/10/2014, is punishable by tazyik imprisonment and the defendant’s appeal against this decision is also rejected,

1 -) details of the criminal General Assembly of the Supreme Court of Appeals dated 29/09/2009 and 2009/16-188 basis, 2009/205 Decision No. of the total amount of pressure imprisonment due to the same debt relationship can not exceed 3 months, regardless of whether the decision in writing twice up to 3 months pressure imprisonment,

2 -) Law No. 340 Of 2004. since the total amount of debt, interest, power of attorney fee, execution fees and expenses must be determined together in the commitment minutes in order to create the offence of violation of the commitment in accordance with the article, the amount that is essential to the debtor’s commitment must be clearly shown., in the concrete case, two separate commitments dated 12/02/2013 and dated 14/05/2014 given in the same execution follow-up file do not have any clarity on interest to be processed from the date of commitment until the payment date, nor does the creditor’s declaration of interest to be processed until the deadline of payment, and because of these reasons, the amount of interest, 309 of the Code of Criminal Procedure No. 5271 on the grounds that no hit was seen in the decision of rejection in written form without considering that the acceptance of the appeal should be decided.the decision referred to in accordance with the article was discussed and considered in accordance with the request to be overturned for the benefit of the law:

Conclusion: as the reason for the request for annulment for the benefit of the law ( 2 ) was examined, the content of the notice based on the request for annulment for the benefit of the law by the Chief Prosecutor of the Court of Cassation was seen in place in this regard, Alanya 1. The decision of the execution Criminal Court dated 13/02/2014 and 2013/957 basis, 2014/104 and the decision of 17/11/2014 and 2014/141 amended Labor No.of the CMK in accordance with article 309/4-d, the removal of pressure confinement in both files given about the misdemeanor ( accused), the reason for disturbing the request for the benefit of the law ( 1 ) according to the reason decided unanimously on 16.03.2017.

T.C.
SUPREME
19. CRIMINAL DEPARTMENT
PRINCIPAL NO: 2017/1481
DECISION NO: 2017/2585
DECISION DATE: 22/03/2017

> VIOLATION OF PAYMENT COMMITMENT, NOT EXPLICITLY STATING INTEREST.

The defendant is charged with violating the debtor’s payment requirement …of the enforcement and Insolvency Act No. 340 of 2004. 3 months confinement in accordance with the pressure of the Criminal Court dated 2015/276 19/04/2016 the execution of punishment based on objection to the decision of the executive 2016/114 for the denial of the Criminal Court Ministry of justice against the decision dated 25/05/2016 2016/36 different business the benefit of the law that contains the prompt 25/01/2017 day and ruining the case’s chief prosecutor of the Supreme Court of the post in the attachments 03/02/2017 day and KYB…. it was read by being sent to our apartment with a numbered notice.

Cited notice;

According to the scope of the file, Law No. 340 of 2004. since the total amount of debt, interest to be committed and processed, proxy fee, execution fees and expenses must be determined together and the amount that is the basis of the debtor’s commitment must be clearly shown in the commitment minutes in order to create a violation of the commitment, even though the interest committed in the payment commitment dated 03/07/2014 is stated as 641,426,15 Turkish lira, there is, 309 of the Criminal Procedure Law No. 5271 on the grounds that the statement of interest waiver to be processed by the creditor is not included until the last payment date and that the amount of interest to be processed and processed for these reasons is not shown separately in the minutes of the commitment because there is uncertainty, the commitment is not valid, the decision referred to in accordance with the article was discussed and considered in accordance with the request to be overturned for the benefit of the law;

Since the contents of the notice, which is based on the request of the Chief Prosecutor of the court of Cassation for the benefit of the law, are seen in place … 309/4-d of the CMK of the Criminal Court of execution decision 25/05/2016 and amended Business No. 2016/36. a unanimous decision was made on 22/03/2017 to abolish pressure confinement, which was ruled to be impaired in accordance with the clause, for the act of violating the condition of payment for the misdemeanor.

Criminal Division 2014/13014 E. , 2014/13251 K.
Ministry of Justice General Directorate of Criminal Affairs 05.05.2014 day and 2014/8857-30083 Law No. 21.05.2014 day and PUK issued by the Chief Public Prosecutor’s Office of the Supreme Court. With Notice No. 2014/182797;

Accused of violating the payment requirement.. G.. Bolu 1 on his acquittal as a result of the trial against him. With the acceptance of the appeal against the decision of the Criminal Court of execution dated 24/10/2013 and based on 2013/607, 2013/1172, to the removal of the acquittal, the defendant’s execution and Insolvency Act No. 340 of 2004. in accordance with Article 3 pressure imprisonment for up to 2 Bolu. Examination of the file covering the decision of the Criminal Court of First Instance dated 21/11/2013 and amended business number 2013/632;

1- As stated in the decision of the Supreme Court Penal General Assembly dated 20.2.2001 dated 2001/8-19 basis and no 2001/26, the total amount to be paid in order to be charged for violation of the undertaking shall be determined numerically, since the parties are required and required to make an admission on this amount, and the amount to which the, in the concrete case,the amount of the debt in the commitment minutes dated 14/02/2013 was calculated as 7,166,68 Turkish lira against the debtor,although the amount of the debt was actually 7,154,83 Turkish lira, and the payment commitment was not legally valid.,

2-the notification dated 18/12/2012 on the notification of the payment order to the debtor accused, a valid address suitable for legal control because of the failure to write the notification Law No. 7201 9 and 23. invalid due to not carrying out the terms of the clause,

3-due to the fact that the notification dated 22/02/2013 regarding the notification of the memorandum of acceptance of the commitment to the debtor defendant is the factory address, the 18 of the notification law no.7201. the notification which is contrary to this situation is invalid when it should be made according to the article,

309 of the Criminal Procedure Law No. 5271. in accordance with the article, the said decision was requested to be overturned, the file sent to our office was examined and discussed as required:

According to the contents of the file examined, the thoughts in the notice were seen at the site, Bolu 2. Decision No. 5271 of the Criminal Court of First Instance dated 21.11.2013 and amended Business No. 2013/632 No. 309 of the CMK. since it is possible to decide in accordance with Article 309/4-d of the CMK on this issue, it was unanimously decided on 03.07.2014 that the sentence of pressure imprisonment against the accused should not be imposed and that the file should be transferred to the Chief Public Prosecutor of the Court of Cassation.

1.It is necessary to write down the execution lien minutes of the debt clauses one by one.

2.Payment dates and amounts must be clear and understandable

3.Approval and signature of the creditor or his agent is required

4.If the commitment was received by the solicitor’s clerk, the “ commitment requirement” must be notified before the first payment date.

5.Certificate of payments to the creditor or the lawyer must be notified of collection to the execution file

6.The actual credit in the execution file should be higher than the fee.

7.The debtor must write by hand that he accepts the commitment and sign it as I accept it

8.In calculations, interest calculations should be done properly when specifying installments

9.Commitment record must be wet signed in execution file

10.A commitment penalty must be filed within 90 days of the payment being made.

T.C.
SUPREME
19. CRIMINAL DEPARTMENT
PRINCIPAL NO: 2017/1481
DECISION NO: 2017/2585
DECISION DATE: 22/03/2017

> VIOLATION OF PAYMENT COMMITMENT, NOT EXPLICITLY STATING INTEREST.

Cited notice;

Supreme Court 11. Criminal Department
Basis: 2014/2326
Verdict: 2014/2512

The Ministry of Justice General Directorate of Criminal Affairs 09/12/2013 day and 2013/18498/75000 Law No. 25/12/2013 day and PUK issued by the Chief Public Prosecutor of the Supreme Court.With Notice No. 2013/398784;

Of the borrower a violation of the payment conditions as a result of the acquittal of the defendant …the judge about the crime about 5. With the acceptance of the appeal against the decision of the execution Criminal Court dated 26/01/2012 and dated 2011/684 basis, 2012/29 concerning the punishment of the defendant with pressure confinement up to 3 months …6. Examination of the file covering the decision of the execution Criminal Court dated 14/06/2012 and amended Business Number 2012/70;

In the minutes dated 03/02/2011 containing the defendant’s commitment, the total amount of the debt required to be paid must be calculated and clearly shown together with all the provisions, the follow-up costs and interest receivables committed up to the commitment date are not clearly included in the commitment, nor is the creditor’s statement that they have been waived, so that the commitment is legally invalid and the crime in accordance with the article, the said decision was requested to be overturned, the file sent to our office was examined and discussed as required:

Since the contents of the file being examined were seen at the place of thought in the notice issued in reference to the request for corruption for the benefit of the law, …6. Decision No. 5271 of the execution Criminal Court 14.06.2012 and the amended Business No. 2012/70 CMK No. 309. since it is possible to decide in accordance with Article 309/4-d of the CMK on this issue, it was unanimously decided on 13.02.2014 that the sentence of pressure imprisonment against the accused should not be imposed and that the file should be transferred to the Chief Public Prosecutor of the Court of Cassation.

Supreme Court 12. Legal Department
Basis: 2013/34807
Verdict: 2014/921

After hearing the report prepared by the audit judge for the case file and reading and reviewing all documents in the file, the work requirement was discussed and considered after the court decision with the date and number listed above was requested by the creditor. :

DECISION

Foreign exchange follow-up was carried out on 27.04.2011 based on various maturity and quantity bonds. The debtor came to the executive director on 17.05.2011 and made a commitment to pay the debt subject to follow-up in installments with acceptance and signed the bottom of this commitment before the executive director. It is understood that the memorandum dated 10.06.2011 was sent to the debtor by the execution office upon the request of the creditor’s attorney to accept the payment commitment and send the payment commitment to the debtor in this regard.

Later, it is seen that the debtor applied to the execution court with the request for cancellation of this memorandum and payment commitment, and the court accepted the complaint and decided to cancel the memorandum of acceptance dated 10.06.2011.

First.nun entitled payment in installments 111.in the same article, ” the debtor undertakes to pay the debt in regular installments before the demand for the sale of the creditor, and if he immediately gives the first installment, the execution treatment stops. So much so that the debtor’s sufficient amount of property should be confiscated and that each installment should not be less than one quarter of the amount of the debt and finally be given month to month and the period should not be more than three months. The periods in Articles 106 and 150/e do not work during the continuation of the contract or contracts that the debtor and the creditor will make in the execution office for the installment of the debt. However, if the total duration of this contract or contracts exceeds ten years, the periods from the date it exceeds begin to work from where it left off. If one of the installments is not given in time, the execution treatment and the periods continue where they left off” arrangement is included.

As there is a payment commitment in accordance with the provision of the article mentioned in the concrete case, there is no need to finalize the follow-up in order to make the payment commitment, the court is not satisfied with the provision for the acceptance of the complaint instead of rejection.

Conclusion: 366 of iik and 428 of Humk for reasons written above, with the acceptance of the appeal appeals of the creditor and the court decision. on 16/01/2014, a unanimous decision was made to return the fees received in advance upon request within 10 days of the notification of the decree.

https://www.myicra.com/forum/printthread.php?tid=147

PAYMENT COMMITMENT MADE DURING FORECLOSURE:

The payment commitment made during the foreclosure is not legally valid on the following grounds. Because the place of foreclosure is not the Enforcement Directorate (where the executive director is located). The place of foreclosure and the execution Directorate have two different legal meanings and consequences.

First of all, you can’t force anyone into the executive director’s office and get a commitment to pay. There is no legal basis for this. Instead of foreclosure, you have to go with the foreclosure officer and the creditor or his agent, and sometimes with the police. In this case, the place of foreclosure is not a place that occurs at the request of the debtor, but a place that exists legally by force of law. In this case, a commitment required by the debtor’s Free Will becomes a commitment taken in an environment where the debtor’s property will be taken by force in response to the debt to the extent permitted by law. In this case, it cannot be mentioned that the debtor has made the commitment voluntarily. At the very least, it cannot be within the freedom of the debtor who comes to the executive director at his own request. In this case, a document that must be obtained by independent Will is taken under the pressure of foreclosure. In this case, the payment commitment is not a right granted to the debtor to pay in installments and at a later date, and it becomes a right that the creditor can use during the foreclosure and is entirely up to the creditor’s initiative.

Baki Kuru in the Manual of enforcement and Bankruptcy Law states that the commitment made during the foreclosure is valid. The commitment made during the foreclosure allows the debtor to prevent the foreclosure of his property and this situation is considered as an advantage for the debtor. Since the executive director during the foreclosure represents the foreclosure officer by being authorized, it is understood from the statement” to be done in the execution office ” to be done in the presence of the executive director, that is, there is no legal objection to be done in front of an authorized officer. As a matter of fact, some of the decisions of the 16th and 17th Law Departments of the Supreme Court in 2004 are in this direction.