To Convey To Defraud a Creditor

26 Jan To Convey To Defraud a Creditor

In practice, the borrowers sell their assets in order to prevent the foreclosure of their existing assets and sell them as a sale in a fictitious way. The actions of the borrowers in the scope of the crime are not limited to these, even though some of the debtors are not indebted, but they are indebted with third parties and they are indebted to them, they usually sign the deed, they do not object to the execution proceedings initiated against them due to the real debts and they cause the follow up to be finalized. It is often observed that real creditors exhibit attitudes and behaviors that prevent them from taking their receivables.

Article 331 Paragraph 1 of the Execution and Bankruptcy Law No: 2004, after the request for foreclosure or within two years prior to this request; if he / she proves that he / she has been incapacitated against the debtor or subtracted from his / her property or some of them by damaging the property or by depriving him / her from the property, by passing it to another’s property or by concealing the debts, or by taking the indemnity against the debtor; up to three years imprisonment for up to three years and a judicial fine up to one thousand days. the rule of law.

The lawmaker aims to protect the rights of creditors pursuant to the law of follow-up by stipulating imprisonment and judicial fine for debtors’ actions and behaviors in accordance with Article 331 of the Execution and Bankruptcy Law.

The fact that the debtor has acted in order to harm his creditor is one of the conditions required for the occurrence of the crime. Therefore, the debtor must be malicious in order to be punished under Article 331. In addition, the debtor to remove all of the property or some of these properties, or to destroy the property or the value of the goods by de facto, or by passing the deed to the other, or by substituting non-realistic debts and by performing one of the actions of the deed of goods. The fact that the borrower has apparently disposed of his / her property (s) also means to reduce his / her presence.

The fact that the borrower has disposed of his property at a price well below the actual value, or that he / she transfers his assets to someone else in a flimsy transaction, or reproducing liabilities by creating non-performing debts, will also result in a reduction of the asset. Article 37 of the Turkish Criminal Code, entitled da Participation in Crime fail states that olur each of the de facto persons involved in the legal definition of crime shall be responsible as perpetrators. Yer Promote the offense to commit a crime or to strengthen the decision to commit a crime or to provide assistance after the deportation. to provide guidance on how to commit the offense, or to provide means for the processing of the offense, to facilitate the execution of the crime before or during the processing of the offense, as well as for the purposes of the offense under Article 331/1 of the TPC. and the person who contributes to the processing of the offense may be punished according to the provisions of the criminal law in accordance with the provisions mentioned above.

For example, those who initiate enforcement proceedings on the debtor by issuing a fiduciary deed, who contributes to the debtor’s interruption in the transactions, and those who help the debtor to increase the liability, will be punished by the provisions of the affiliation to the crime. If the debtor is a legal person, the liability belongs to the real persons authorized to represent and administer the legal entity in accordance with Article 345, as there is no criminal capacity.

It is important to remember that in order for the crime to occur, the debtor has to carry out his actions that reduce his / her presence within a certain period of time. In the text of the article, this is stated as: ”in the two years preceding the request for follow-up by way of foreclosure or this request Madde. However, in Article 347 of the Execution Bankruptcy Law entitled er Period of Complaint ği, ği The right to complain due to the acts in this Bapta shall be for one year from the date on which the offense is learned, and in any case shall take one year from the date on which the act is committed “. Article 331 considers transactions within two years retrospectively, and discloses that the right to complain within 1 year of the Article 347 will be reduced, creating a conflict between both laws.

Bu sebeple her ne kadar 331. maddede  haciz yolu ile takip talebinden önce geriye doğru 2 yıllık süre içerisindeki işlemler şikayet konusu olabilecek denilmesine rağmen, şikayet hakkı süresi sınırlandırması nedeniyle, en fazla bir yıllık süre içinde gerçekleştirilen fiillerle ilgili borçlunun cezai sorumluluğu doğabilecektir. Bir yıldan daha eski tarihli fiiller nedeniyle, şikayet hakkı ortadan kalkmış olacağından, borçlunun  her hangi bir sorumluluğu doğmayacaktır.

Diğer bir şart da alacaklı zarara uğramalıdır. Zarara uğradığını ispat yükü alacaklıdadır. Alacaklı bu hususu, borçlu aleyhine başlatmış olduğu icra takibinde alacağını tahsil edemediğini  ispatla yükümlüdür. Uygulamada, icra dosyasından alınan aciz belgesi, ispat aracı olarak kullanılmaktadır. Geçici ve kesin olmak üzere iki tür aciz belgesi bulunmaktadır. Kanunda her ne kadar açıkça belirtilmemiş ise de, doktrinde, kanunun aradığı aciz belgesinin kesin aciz belgesi olduğu kabul edilmektedir. İcra dosyasından alacaklının kesin aciz belgesi alabilmesi için, borçluya ait menkul, gayrimenkul bulunmadığı, borçlunun 3. kişilerde hak veya alacaklarının olmadığını belgelemesi gerekmektedir.