T.C. General Assembly of the Supreme Court of Law basis no: 2011/9-508
Decision No: 2011/545
Decision Date: 21.09.2011

DEMAND FOR COLLECTION OF THE PENAL REQUIREMENT-CONTRARY TO THE PROHIBITION OF COMPETITION
CONDUCT CLAIM-THE BASIS OF THE COMPETITION BAN IS THAT OF THE WORKER
LOYALTY DEBT ARISING FROM THE CONTRACT OF SERVICE
ORIGINATING FROM – SERVICE CONTRACT
EMPLOYMENT TRIBUNAL IN DISPUTES

Summary: the basis of the competition ban in the case is the loyalty arising from the worker’s contract of Service.
the court responsible for the disputes arising from the contract of service arising from the debt
it’s his trial.
(1475 P. K. m. 14) (4857 P. K. m. 4, 120) (818 P. K. m. 159, 161, 348, 349, 350, 351, 352) (6762 S.
K. m. 4, 5) (5521 P. K. m. 1) (YIBK 29.06.1960 T. 1960/13 E. 1960/15 K.) (YHGK 05.02.2003 T.
2003/9-82 E. 2003/65 K.) (YHGK 22.09.2008 T. 2008/9-517 E. 2008/566 K.)
Case: at the end of the trial due to the case between the parties; Bakırköy 9.Work
Decision no: 09.01.2008 and 2007/76-2008/1 given by the court on the rejection of the case
upon request by the deputy Plaintiff for examination, the court of Cassation 9.25.01.2010 days of Law Office
and with the Decree No. 2008/14902-2010/1271;
(…1-according to the legal reasons on which the decision is based by the evidence collected in the articles in the file,
the plaintiff’s appeals that fall outside the scope of the following clause are not in place.
2-the plaintiff leaves the company undeclared while the defendant works as a worker, operating on the same subject as a
another company has requested notice compensation and punitive condition compensation for its work.
After the defendant worker testified that he was married so could not be entitled to notice compensation, the force
because of my presence in the situation, he stated that an imposed condition would not lead to provision.
The court dismissed the case and the decision was appealed by the plaintiff.
If the woman voluntarily terminates her employment contract within one year from the date of her marriage
severance pay (Law No. 4857 m. No. 1475, left in force by 120
Act 14.the plaintiff shall not be entitled to notice compensation. The decision is true with this aspect.
The penal clause attached to the competition ban is a separate legal concept. In the penal clause attached to the competition ban
in case of breach of contract, even if there is no harm, such compensation may be requested.
Normative basis BK m.159 / II dir. BK m.Prohibition of competition by paying workers punitive requirement by 351 / II
he can get out of his contract. However, here BK m.Considering discount rules in 161/III
it is. Reciprocity is not required.

In the concrete case, the defendant worker started working in the company doing business in the same matter as the plaintiff company. Selling
it is inevitable to have a foundation as its representative. The same period of six months from departure in the employment contract
about a job will not work. The breach of contract is indisputable.
The work to be done by the court is to ensure that the criminal condition is met.161 in terms of evaluation and decision based on the outcome
is to give.
It is wrong to decide in writing…)
due to be overturned on the grounds that the file was returned instead, at the end of the re-trial,
a previous decision by the court was resisted.
The law was examined by the General Assembly and it was understood that the decision to resist was appealed during its duration; and
after reading the papers in the file, the requirement was discussed:
Verdict: the case contravenes the competition ban laid down in articles 348 and continuation of the Code of Obligations
it is related to the request for collection of the criminal condition agreed in the contract, based on the claim of conduct.
The decision of the Local Court to dismiss the case was made by the special office upon the appeal of the plaintiff’s attorney.,
sentencing with the same letter as the text of the above is impaired in terms of the condition; in the previous decision by the court
resisted. The prosecution has appealed the verdict.
Dispute before the General Assembly of law by resistance;
at the point of whether the criminal condition compensation due to the competition prohibition record should be ruled
is collected.
During the meeting at the General Assembly of the law, before the merits of the work were passed, the case was legal
cases arising from articles 348 and continuation of the law of Obligations, which constitute the basis, Turkish
4 Of The Commercial Code.according to the nature of the absolute commercial case listed in the article is the same
Act 5.whether the duty to look at the case at hand under the article belongs to the Commercial Court
the issue has been treated as a preliminary problem and discussed.
As for the assessment of this preliminary problem;
Title 10 of the Code of Obligations No. 818.Held under the title of babunda 348 and its sequel
provisions relating to competition are included in their articles.
4 Of The Turkish Commercial Code.Article 5 of the same law.at Article,
it is stated that the duty to handle commercial cases belongs to the commercial courts.
On the other hand, Labour Courts Act No. 5521 1.article; labor according to Labor Law
employment contract or any right based on Labour Law between the persons deemed to be employers
civil cases arising from his claims will be looked at in the employment courts.
Considering the provisions of the mentioned Law, first of all, 348 and continuation of the Code of Obligations
the court tasked with looking into the cases arising must be determined.
Work and working life in Turkish law was first enacted in 1924 and related to the week holiday
Obligations No. 818, which were regulated by law and which came into force in 1926 after this law
Detailed regulation was introduced by law.

Because of the changes in working life and the special needs of the workers,
as a requirement of the principle of the social state, the legislator is increasingly regulating this field
the Labor Law No. 931 was first introduced in 1967 with the need for intervention.
the Law No. 1475 was issued in 1971 upon the annulment of this law by the Constitutional Court and
finally, Labour Law No. 4857 entered into force in 2003.
None of these laws of special nature are the provisions of the Code of obligations relating to work and working life.
not repealed, but not contrary to the provisions of the Labour Law
application to disputes arising and service contracts outside the scope of labor laws
his point was clearly stressed by the legislator.
Loyalty debt arising from the establishment of an employment contract, protection and protection of the interests of the employer by the worker
it’s his debt. The obligation of non-competition is the employee’s loyalty to the employer, which is the result of the contract of employment.
it refers to the negative side of the debt.
It should be stated immediately that the employee should not compete with the employer during the continuation of the employment contract.
it is an obligation contained within. In contrast, the parties agree that the contract while the business relationship continues
a provision that the worker shall not compete after the end of the contract of employment, or
they may decide to make a separate agreement (non-competition agreement) on the matter. End of business contract
after termination, the worker’s obligation to not compete with the employer, but such an obligation by contract
if it is decided, this is the case (Sarper, Süzek: Labour Law, Beta publications, 2005,
P.277).
In the contract of service, the worker is in a weak position compared to the other party (the owner of the job).
service contract to prevent owner from oppressing worker by providing unfair benefits
he felt the need to regulate the provisions on the competition ban to be added in a special way.
The provisions of the code of obligations regulation 348-352 are provided only for the service contract.
they can be applied to non-competitive contracts (Cevdet, Yavuz: law of Obligations courses
Provisions, Beta publications, 2006, p.276).
The limitations set out in this article, which are intended to protect the worker, shall, in this case, apply to other contracts.
they cannot be implemented (Hifzi Veldet Velidedeoğlu: Turkish Code of Obligations commentary, Supreme Court publications 1987,
P.561).

It is not possible to accept that every service contract necessarily concerns a commercial enterprise.
Therefore, the Prohibition of competition in the service contract made by the tradesman level person
it is pointless to consider the case arising from the violation as an absolute commercial case in accordance with this provision. Such a
the dispute arising out of the contract is not related to the life of self-commerce> as well as its resolution is a separate expertise
do not require (Sabih, Arkan: commercial enterprise law, 9.Research In Printing, Banking And Commercial Law
Institute 2005, p.94-95).
348 Of The Code Of Obligations.the Prohibition of competition in the article gives rise to a fundamental obligation.
it is not a contract; it creates a liability of a Ferri nature depending on the contract of employment. Business relations
the basis of the regulation of the doğan competition ban is Labor Relations.
How to protect the worker when regulating the Labor Relations of the state, the rules of material law of a special nature
in the case of a legal dispute, the settlement of labour disputes is also general.
by leaving the judiciary, it is easy, fast and in a way that serves the purpose of this law which is unique to Labour Law.
the expert judging by the rules of economic procedure is required to leave it to a special (specific) judgment. Here
as in most countries, business cases in Turkey have to be handled in special courts that are specialized in this field.;
to be seen in labour courts and according to a different procedure than the General trial procedures, i.e. a work
expresses the existence and necessity of the judiciary (Hamdi, Mollamahmutoğlu: Labour Law, Turhan publications
2004, p.103).
According to the decision of the merging Board of the Supreme Court case law 29.06.1960 day, 1960/13 and 1960/15;
courts have special knowledge of the cases arising from the relations arising from the employment contract.
for the purpose of appearing in courts> established; employees (amended by law 2.
article C, D and E except for employees in jobs excluded from paragraphs) employment contract between the employer
legal disputes arising out of claims of any kind based on labour law or in these courts
shall be settled.
In accordance with the Labour Courts Act No. 5521 which was enacted in this context and entered into force in 1950;
work between the employee and the employer in order for a dispute to be seen in the employment courts
legal dispute arising out of contract or any claim of rights based on labour law
must be present (the decision of the General Assembly of the Supreme Court of law 05.02.2003 on the day and 2003/82-65).
In this context, the basis of the competition ban on the subject of the lawsuit is based on the worker’s contract of Service
responsible for disputes arising out of the contract of service, arising out of the debt of loyalty
the court is an employment tribunal.

On the other hand, labor disputes are legal disputes of a special nature. Act 1 of 5521.
labor disputes that fall under the jurisdiction of labor courts are considered to be workers according to labor law.
any right between persons and employers or their agents based on employment contract or labor law
legal disputes arising from their claims are stated as>. Duty of the labour courts
labor disputes as legal disputes in the field, the parties and the subject matter determined by law;
that is, there are disputes of a certain nature, and when the rules of duty relate to public order, the content of which is arbitrary
conflicts that cannot be filled. Business courts, therefore as a court of law
natural to administrative and criminal disputes, even if arising from contract or labor law
between workers who fall outside the scope of Labour Law and employers who employ them
he will not be able to deal with disputes, even if they are caused by an employment contract. This is the last kind.
in the case of a dispute, the employer and the employee are the parties to the dispute, although the source of the dispute is the contract of employment.
in the case of a business case which is not qualified and therefore the subject of these disputes is a business case
non-assessable; they are generally involved in civil disputes and civil cases (Hamdi,
Mollamahmutoğlu: Labour Law, Turhan publications 2004, p.104-105).
Labour Courts Act No. 5521, since Labour Law No. 3008 was repealed
1.the provision of the article is defined today according to the Labor Law No. 4857 and 4. what is mentioned in the article
they should be understood as excluded workers. The expression of the Law No. 5521 Labor Law
it should be interpreted as the worker covered. In this case, exceptions to Labor Law No. 4857>
titled 4.work in cases to be filed by the persons listed in the article and the employees in the jobs specified in the article
the general courts, not the courts, are in charge.
As a matter of fact, the statements made in relation to the court in charge above and the principles laid down in law
22.09.2008 days of the General Assembly and E:2008/9-517, K: 566 also adopted the same decree.
As a result; Labor Law based on articles 348 and continuation of the Code of Obligations No. 818
the person deemed to be a worker under the penal clause filed for breach of the non-competition agreement
in cases related to the collection of the labor courts are considered to be in charge of the preliminary issue with a majority of votes
after being overcome, the merits of the work were examined.
In examining the merits of the work;
The mutual claims and defences of the parties, the minutes and evidence in the dossier, in the decision to distort
according to the necessary reasons described, the law is also adopted by the General Assembly to disrupt the special circle
while the decision must be obeyed, it is against procedure and law to resist the previous decision. Therefore resistance
his decision should be overturned.
Conclusion: with the acceptance of the appellate appeals of the plaintiff’s deputy, the decision to resist is in the decision to break the special circle
and HUMK for the reasons shown above. nun 429.deterioration in accordance with the clause,
A unanimous decision was made on 21.09.2011.