T.C. General Assembly of the Supreme Court of Law basis no: 2011\/9-508
\nDecision No: 2011\/545
\nDecision Date: 21.09.2011<\/p>\n
DEMAND FOR COLLECTION OF THE PENAL REQUIREMENT-CONTRARY TO THE PROHIBITION OF COMPETITION
\nCONDUCT CLAIM-THE BASIS OF THE COMPETITION BAN IS THAT OF THE WORKER
\nLOYALTY DEBT ARISING FROM THE CONTRACT OF SERVICE
\nORIGINATING FROM – SERVICE CONTRACT
\nEMPLOYMENT TRIBUNAL IN DISPUTES<\/p>\n
Summary: the basis of the competition ban in the case is the loyalty arising from the worker’s contract of Service.
\nthe court responsible for the disputes arising from the contract of service arising from the debt
\nit’s his trial.
\n(1475 P. K. m. 14) (4857 P. K. m. 4, 120) (818 P. K. m. 159, 161, 348, 349, 350, 351, 352) (6762 S.
\nK. m. 4, 5) (5521 P. K. m. 1) (YIBK 29.06.1960 T. 1960\/13 E. 1960\/15 K.) (YHGK 05.02.2003 T.
\n2003\/9-82 E. 2003\/65 K.) (YHGK 22.09.2008 T. 2008\/9-517 E. 2008\/566 K.)
\nCase: at the end of the trial due to the case between the parties; Bak\u0131rk\u00f6y 9.Work
\nDecision no: 09.01.2008 and 2007\/76-2008\/1 given by the court on the rejection of the case
\nupon request by the deputy Plaintiff for examination, the court of Cassation 9.25.01.2010 days of Law Office
\nand with the Decree No. 2008\/14902-2010\/1271;
\n(…1-according to the legal reasons on which the decision is based by the evidence collected in the articles in the file,
\nthe plaintiff’s appeals that fall outside the scope of the following clause are not in place.
\n2-the plaintiff leaves the company undeclared while the defendant works as a worker, operating on the same subject as a
\nanother company has requested notice compensation and punitive condition compensation for its work.
\nAfter the defendant worker testified that he was married so could not be entitled to notice compensation, the force
\nbecause of my presence in the situation, he stated that an imposed condition would not lead to provision.
\nThe court dismissed the case and the decision was appealed by the plaintiff.
\nIf the woman voluntarily terminates her employment contract within one year from the date of her marriage
\nseverance pay (Law No. 4857 m. No. 1475, left in force by 120
\nAct 14.the plaintiff shall not be entitled to notice compensation. The decision is true with this aspect.
\nThe penal clause attached to the competition ban is a separate legal concept. In the penal clause attached to the competition ban
\nin case of breach of contract, even if there is no harm, such compensation may be requested.
\nNormative basis BK m.159 \/ II dir. BK m.Prohibition of competition by paying workers punitive requirement by 351 \/ II
\nhe can get out of his contract. However, here BK m.Considering discount rules in 161\/III
\nit is. Reciprocity is not required.<\/p>\n
In the concrete case, the defendant worker started working in the company doing business in the same matter as the plaintiff company. Selling
\nit is inevitable to have a foundation as its representative. The same period of six months from departure in the employment contract
\nabout a job will not work. The breach of contract is indisputable.
\nThe 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
\nis to give.
\nIt is wrong to decide in writing\u2026)
\ndue to be overturned on the grounds that the file was returned instead, at the end of the re-trial,
\na previous decision by the court was resisted.
\nThe law was examined by the General Assembly and it was understood that the decision to resist was appealed during its duration; and
\nafter reading the papers in the file, the requirement was discussed:
\nVerdict: the case contravenes the competition ban laid down in articles 348 and continuation of the Code of Obligations
\nit is related to the request for collection of the criminal condition agreed in the contract, based on the claim of conduct.
\nThe decision of the Local Court to dismiss the case was made by the special office upon the appeal of the plaintiff’s attorney.,
\nsentencing with the same letter as the text of the above is impaired in terms of the condition; in the previous decision by the court
\nresisted. The prosecution has appealed the verdict.
\nDispute before the General Assembly of law by resistance;
\nat the point of whether the criminal condition compensation due to the competition prohibition record should be ruled
\nis collected.
\nDuring the meeting at the General Assembly of the law, before the merits of the work were passed, the case was legal
\ncases arising from articles 348 and continuation of the law of Obligations, which constitute the basis, Turkish
\n4 Of The Commercial Code.according to the nature of the absolute commercial case listed in the article is the same
\nAct 5.whether the duty to look at the case at hand under the article belongs to the Commercial Court
\nthe issue has been treated as a preliminary problem and discussed.
\nAs for the assessment of this preliminary problem;
\nTitle 10 of the Code of Obligations No. 818.Held under the title of babunda 348 and its sequel
\nprovisions relating to competition are included in their articles.
\n4 Of The Turkish Commercial Code.Article 5 of the same law.at Article,
\nit is stated that the duty to handle commercial cases belongs to the commercial courts.
\nOn the other hand, Labour Courts Act No. 5521 1.article; labor according to Labor Law
\nemployment contract or any right based on Labour Law between the persons deemed to be employers
\ncivil cases arising from his claims will be looked at in the employment courts.
\nConsidering the provisions of the mentioned Law, first of all, 348 and continuation of the Code of Obligations
\nthe court tasked with looking into the cases arising must be determined.
\nWork and working life in Turkish law was first enacted in 1924 and related to the week holiday
\nObligations No. 818, which were regulated by law and which came into force in 1926 after this law
\nDetailed regulation was introduced by law.<\/p>\n
Because of the changes in working life and the special needs of the workers,
\nas a requirement of the principle of the social state, the legislator is increasingly regulating this field
\nthe Labor Law No. 931 was first introduced in 1967 with the need for intervention.
\nthe Law No. 1475 was issued in 1971 upon the annulment of this law by the Constitutional Court and
\nfinally, Labour Law No. 4857 entered into force in 2003.
\nNone of these laws of special nature are the provisions of the Code of obligations relating to work and working life.
\nnot repealed, but not contrary to the provisions of the Labour Law
\napplication to disputes arising and service contracts outside the scope of labor laws
\nhis point was clearly stressed by the legislator.
\nLoyalty debt arising from the establishment of an employment contract, protection and protection of the interests of the employer by the worker
\nit’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.
\nit refers to the negative side of the debt.
\nIt should be stated immediately that the employee should not compete with the employer during the continuation of the employment contract.
\nit is an obligation contained within. In contrast, the parties agree that the contract while the business relationship continues
\na provision that the worker shall not compete after the end of the contract of employment, or
\nthey may decide to make a separate agreement (non-competition agreement) on the matter. End of business contract
\nafter termination, the worker’s obligation to not compete with the employer, but such an obligation by contract
\nif it is decided, this is the case (Sarper, S\u00fczek: Labour Law, Beta publications, 2005,
\nP.277).
\nIn the contract of service, the worker is in a weak position compared to the other party (the owner of the job).
\nservice contract to prevent owner from oppressing worker by providing unfair benefits
\nhe felt the need to regulate the provisions on the competition ban to be added in a special way.
\nThe provisions of the code of obligations regulation 348-352 are provided only for the service contract.
\nthey can be applied to non-competitive contracts (Cevdet, Yavuz: law of Obligations courses
\nProvisions, Beta publications, 2006, p.276).
\nThe limitations set out in this article, which are intended to protect the worker, shall, in this case, apply to other contracts.
\nthey cannot be implemented (Hifzi Veldet Velidedeo\u011flu: Turkish Code of Obligations commentary, Supreme Court publications 1987,
\nP.561).<\/p>\n
It is not possible to accept that every service contract necessarily concerns a commercial enterprise.
\nTherefore, the Prohibition of competition in the service contract made by the tradesman level person
\nit is pointless to consider the case arising from the violation as an absolute commercial case in accordance with this provision. Such a
\nthe dispute arising out of the contract is not related to the life of self-commerce> as well as its resolution is a separate expertise
\ndo not require (Sabih, Arkan: commercial enterprise law, 9.Research In Printing, Banking And Commercial Law
\nInstitute 2005, p.94-95).
\n348 Of The Code Of Obligations.the Prohibition of competition in the article gives rise to a fundamental obligation.
\nit is not a contract; it creates a liability of a Ferri nature depending on the contract of employment. Business relations
\nthe basis of the regulation of the do\u011fan competition ban is Labor Relations.
\nHow to protect the worker when regulating the Labor Relations of the state, the rules of material law of a special nature
\nin the case of a legal dispute, the settlement of labour disputes is also general.
\nby leaving the judiciary, it is easy, fast and in a way that serves the purpose of this law which is unique to Labour Law.
\nthe expert judging by the rules of economic procedure is required to leave it to a special (specific) judgment. Here
\nas in most countries, business cases in Turkey have to be handled in special courts that are specialized in this field.;
\nto be seen in labour courts and according to a different procedure than the General trial procedures, i.e. a work
\nexpresses the existence and necessity of the judiciary (Hamdi, Mollamahmuto\u011flu: Labour Law, Turhan publications
\n2004, p.103).
\nAccording to the decision of the merging Board of the Supreme Court case law 29.06.1960 day, 1960\/13 and 1960\/15;
\ncourts have special knowledge of the cases arising from the relations arising from the employment contract.
\nfor the purpose of appearing in courts> established; employees (amended by law 2.
\narticle C, D and E except for employees in jobs excluded from paragraphs) employment contract between the employer
\nlegal disputes arising out of claims of any kind based on labour law or in these courts
\nshall be settled.
\nIn accordance with the Labour Courts Act No. 5521 which was enacted in this context and entered into force in 1950;
\nwork between the employee and the employer in order for a dispute to be seen in the employment courts
\nlegal dispute arising out of contract or any claim of rights based on labour law
\nmust be present (the decision of the General Assembly of the Supreme Court of law 05.02.2003 on the day and 2003\/82-65).
\nIn this context, the basis of the competition ban on the subject of the lawsuit is based on the worker’s contract of Service
\nresponsible for disputes arising out of the contract of service, arising out of the debt of loyalty
\nthe court is an employment tribunal.<\/p>\n
On the other hand, labor disputes are legal disputes of a special nature. Act 1 of 5521.
\nlabor disputes that fall under the jurisdiction of labor courts are considered to be workers according to labor law.
\nany right between persons and employers or their agents based on employment contract or labor law
\nlegal disputes arising from their claims are stated as>. Duty of the labour courts
\nlabor disputes as legal disputes in the field, the parties and the subject matter determined by law;
\nthat is, there are disputes of a certain nature, and when the rules of duty relate to public order, the content of which is arbitrary
\nconflicts that cannot be filled. Business courts, therefore as a court of law
\nnatural to administrative and criminal disputes, even if arising from contract or labor law
\nbetween workers who fall outside the scope of Labour Law and employers who employ them
\nhe will not be able to deal with disputes, even if they are caused by an employment contract. This is the last kind.
\nin 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.
\nin the case of a business case which is not qualified and therefore the subject of these disputes is a business case
\nnon-assessable; they are generally involved in civil disputes and civil cases (Hamdi,
\nMollamahmuto\u011flu: Labour Law, Turhan publications 2004, p.104-105).
\nLabour Courts Act No. 5521, since Labour Law No. 3008 was repealed
\n1.the provision of the article is defined today according to the Labor Law No. 4857 and 4. what is mentioned in the article
\nthey should be understood as excluded workers. The expression of the Law No. 5521 Labor Law
\nit should be interpreted as the worker covered. In this case, exceptions to Labor Law No. 4857>
\ntitled 4.work in cases to be filed by the persons listed in the article and the employees in the jobs specified in the article
\nthe general courts, not the courts, are in charge.
\nAs a matter of fact, the statements made in relation to the court in charge above and the principles laid down in law
\n22.09.2008 days of the General Assembly and E:2008\/9-517, K: 566 also adopted the same decree.
\nAs a result; Labor Law based on articles 348 and continuation of the Code of Obligations No. 818
\nthe person deemed to be a worker under the penal clause filed for breach of the non-competition agreement
\nin cases related to the collection of the labor courts are considered to be in charge of the preliminary issue with a majority of votes
\nafter being overcome, the merits of the work were examined.
\nIn examining the merits of the work;
\nThe mutual claims and defences of the parties, the minutes and evidence in the dossier, in the decision to distort
\naccording to the necessary reasons described, the law is also adopted by the General Assembly to disrupt the special circle
\nwhile the decision must be obeyed, it is against procedure and law to resist the previous decision. Therefore resistance
\nhis decision should be overturned.
\nConclusion: 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
\nand HUMK for the reasons shown above. nun 429.deterioration in accordance with the clause,
\nA unanimous decision was made on 21.09.2011.<\/p>\n","protected":false},"excerpt":{"rendered":"
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…<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[217,223,529,220,218,254],"yoast_head":"\n