T.C.
\nSUPREME COURT
\nGrand General Assembly
\nBase No: 2010\/1
\nDecision No: 2012\/1
\nDecision Date: 10.02.2012<\/p>\n
Abstract: Turkish enforcement law foreign court decisions clearly violate Turkish public order
\nhe’s interested in whether or not. Moreover, the judge of enforcement to examine and consider the reason for the decision
\nhe was not even given the task and authority to receive it. Foreign court decision, procedural law of the country in which it was issued
\nthe rule is governed by the > lex fori> rule. Terms of enforcement how and to what extent these rules are enforced
\nhe has shown that he will block it separately. It can be seen that the Turkish procedure in the decision of the foreign court
\nThe law?in the sense of the law on Civil Procedure 6100, which has just entered into force
\nthe absence of justification is not a phenomenon that requires the intervention of the Turkish public order in the press alone.
\nAs a principle, each court applies its own national procedural provisions, so the foreign court applies
\nthe fact that the procedure is different from Turkish law is not a justification for the intervention of public order. Same
\nthe principle also applies to the rules of the law of proof applied in a foreign court decision.
\nA foreigner created and certain without justification without being granted the right to an exclusive legal hearing
\nby stating that the court’s decision is contrary to Turkish public order for this reason alone, enforcement the refusal of his request would also contradict the Lex fori principle.
\n(5718 P. K. m. 50, 52, 53, 54, 55, 56, 57) (2675 S. K. m. 34, 36, 37, 38, 39, 40, 41) (2709 S. K. m. 141)
\n(6100 P. K. m. 297, 298) (1086 P. K. m. 388) (YHGK. 27.05.2009 T. 2009\/19-102 E. 2009\/208 K.)
\n(YHGK. 21.06.2000 T. 2000\/2-1051 E. 2000\/1068 K.) (2. HD. 08.06.2006 t. 2006\/2612 E. 2006\/9147
\nK.) (13. HD. 02.10.2003 T. 2003\/6226 E. 2003\/11095 K.) (13. HD. 05.12.2001 t. 2001\/9007 E.
\n2001\/11406 K.)
\nI – Application For Combining Case Law
\nWhether the justification of a foreign court application is contrary to public order and this
\nwhether the lack of justification in the baglam will prevent the enforcement of a foreign court decision
\nSupreme Court 2. Decisions of the legal department, decisions of the same department and the Supreme Court 13. Law
\nBy combining case law, the contrary of opinion is claimed to contradict the decisions of his office
\nelimination, Av. Serpil Alatali Bayburtun was requested with the application dated 24.11.2009.
\nII-decisions on the purpose of eliminating the violation of opinion
\nSupreme Court 2. 30.06.1999 days of the legal department and E:1999\/5858 K:1999\/7609 a numbered decision.
\nSupreme Court 2. 08.06.2006 day of the legal department and E:2006\/2612 K:2006\/9147 a numbered decision.
\nSupreme Court 13. 05.12.2001 day of the legal department and E:2001\/9007 K:2001\/11406 a numbered decision.
\nSupreme Court 13. 02.10.2003 day of the legal department and E:2003\/6226 K:2001\/11095 a numbered decision.
\n21.06.2000 days of the General Assembly of the Supreme Court of Law and E:2000\/2-1051 K: resolution 2000\/1068.
\n27.05.2009 day of the General Assembly of the Supreme Court of Law and E:2009\/19-102 K: resolution 2009\/208.
\nIII – summaries of the views specified in the decisions to resolve the conflict of opinion
\nSupreme Court 2. 30.06.1999 days of the legal department and E:1999\/5858 K:1999\/7609 in his numbered decision; justification
\na foreign court decision that does not contain and is a temporary divorce is a Turkish public order
\nit has been stated that it is a violation.
\nSupreme Court 2. 08.06.2006 day of the legal department and E:2006\/2612 K:2006\/9147 in his numbered decision; recognition and
\nthe truth of the foreign court’s decision in enforcement, the procedural provisions that have been applied, material and
\nit is clearly contrary to public order that legal determinations should be excluded from review, but,
\nBasic rights and freedoms regulated by the Constitution, basic principles adopted in international law,
\nthe right to a fair trial and defense, general morality, which forms the basis of the Turkish legal order and
\nin this respect, a foreign court is limited to cases of violation of the principles that the state cannot give up
\nit is contrary to public order and therefore cannot be considered an obstacle to enforcement.
\nit has been stated that the president of the said Department has also announced that his stable recent practices are in this direction.
\nSupreme Court 13. 05.12.2001 day of the legal department and E:2001\/9007 K:2001\/11406 and 02.10.2003 days and
\nE:2003\/6226 K:2001\/11095 in numbered decisions, foreign court declarations contain justification
\nbecause its failure to do so is contrary to the Constitution and public order, it will prevent recognition and enforcement
\nit was adopted and pointed in the same direction in the opinion writings.
\nDirect invalidity in the enforcement of foreign court declarations of the General Assembly of the Supreme Court of law
\nalthough there is no relevant decision; 21.06.2000 days, E:2000\/2-1051 K:2000\/1068 and 27.05.2009
\nday, E:2009\/19-102 K: in decisions 2009\/208, the need to implement law 2675 and
\nas well as the examination of the content of the foreign declaration in the implementation of the Law No. 5718 in force and
\nit has been accepted that it is appropriate for the audit and that the public order measure is sufficient for the audit.
\nIn the case of water; in relation to the subject of the General Assembly of law, in the enforcement of foreign court declarations
\nbecause there is no direct decision on invalidity; the decisions of the second Legal Department are their own
\nit is clear that he contradicts the decisions of the Thirteenth Legal Department.
\nIV-decisions on the need to eliminate the violation of opinion by combining the case law, and
\nThe Jurisprudence On The Subject Of Combining
\nBy the decision of the first Presidential Council of the Supreme Court dated 29.11.2010 and numbered 158;
\nAs to whether the absence of justification for foreign court decisions will prevent enforcement
\n30.06.1999 date of the second Legal Department E:1999\/5858 K:1999\/7609, date 08.06.2006 E:2006\/2612
\nK:2006\/9147, date 05.12.2001 of the Thirteenth Law Department E:2001\/9007 K:2001\/11406, 02.10.2003
\nhistory E:2003\/6226 K:2003\/11095 among the numbered decisions, there is a discrepancy in opinion and decisiveness
\nas it is concluded that the practice is maintained; combining contrary case law General
\nThe date of the meeting is later determined by the First Presidency.
\nit has been decided to appoint a rapporteur member.
\nRapporteur at the session of the General Assembly of the Supreme Court of law on the unification of cases dated 10.02.2012
\nafter the member’s statements are heard, before they are entered into the decency; first of all, the opinion among the case law
\ndecision that there is a violation and that this violation should be eliminated by combining the law
\ngiven and the subject of combining the case law, the mere justification of foreign court decisions
\nwhether its absence will interfere with the enforcement of a final foreign court decision, this issue
\nIn the sense of Article 54 \/ c of the Law No. 5718 on International Private Law and Procedural Law
\nit is determined whether it will be considered a clear violation of public order.
\nV-Justification For Combining The Law
\n1 – Legal Regulations Related To The Subject<\/p>\n
A) The Constitution Of The Republic Of Turkey
\nOpen hearings and reasoned decisions
\nArticle 141-hearings in the courts are open to all. Some or all of the hearings
\nclosed, but where general morality or public safety is strictly necessary
\nit can be decided.
\nSpecial provisions are made by law on the trial of minors.
\nAll decisions of all courts are written as reasoned.
\nIt is the duty of the judiciary to conclude cases with the least expense and as quickly as possible.
\nB) law on Civil Procedure No. 6100
\nScope of provision
\nArticle 297 – (1) the provision is given on behalf of the Turkish nation and covers the following issues after this phrase:
\na) registration with the first and last names of the court and the judge or judges and the clerk of the police
\nif the court serves in various adjectives, in which adjective the sentence is given.
\nb) the identities of the parties and participants in the case and the identification number of the Republic of Turkey, if any, legal
\nfirst and last names and addresses of Representatives and proxies.
\n(c) the summary of the claims and defenses of the parties, the issues they understand and do not understand, should be withdrawn
\nevidence collected about cases, weighing and evaluating evidence,
\nconclusions and legal reasons extracted from them with cases.
\nD) as a result of the provision, court costs and refund of the unspent portion of the advance received from the parties,
\nways and duration of the law, if any.
\nd) the date of provision and the signatures of the judge or judges and the clerk of the police.
\ne) date on which the reasoned decision was written.
\n(2) in the conclusion part of the provision, without repeating any words of justification, each of the claims
\nin accordance with the provision given about the debt and recognized rights charged to the parties, under the sequence number;,
\nit must be shown in a way that does not arouse doubt and hesitation.
\nC) Law on Civil Procedure No. 1086
\nArticle 388-the decision covers the following considerations:
\n1. Names and surnames of the court and the judge or judges and the clerk of the record who made the decision, and the register
\nnumbers, if the court serves in various adjectives, in which adjective the decision is made,
\n2. The identities of the parties and the participants in the case, as well as the names and surnames of the legal representatives and their proxies, if any
\nwith addresses,
\n3. Summary of the claims and defenses of the two parties, issues that they understand and do not understand, disputed issues
\nevidence collected about him, weighing of evidence, reasons for rejection and superiority, in cases that are considered fixed
\nconclusion and legal reason extracted from them,
\n4. Path and duration of the law, if any, with the result of the provision,
\n5. Date of decision and signatures of the judge or judges and the clerk of the minutes,
\nIn the conclusion of the provision Section, without repeating any words of justification, each of the results of the request
\ndebt and recognized rights charged to the parties by the provision given about one, if possible, sequence number
\nbelow it, it must be shown one by one, clearly, without arousing doubt or hesitation.
\nD) Law No. 5718 on International Private Law and Procedural Law
\nEnforcement and recognition of foreign court and arbitration decisions
\nEnforcement decision
\nArticle 50 – (1) foreign courts in relation to civil cases and that state
\nthe Turkish court authorized to execute the declarations finalized according to the laws in Turkey
\nit depends on the decision of enforcement.
\n(2) enforcement of the provisions on personal rights contained in the criminal declarations of foreign courts
\nhis decision may be requested.
\nenforcement prompt
\nArticle 52 – (1) anyone who has legal benefit in enforcing the decision may request enforcement.
\nA request for enforcement becomes with a petition. As many examples as the number of opposing parties are added to the petition. In the petition below
\nconsiderations include:
\n(a) the name, surname and addresses of the applicant, the opposing party and its legal representatives and proxies, if any.
\nb) from which state court the provision in question of enforcement was issued, and the application with the name of the court
\ndate and number and summary of the provision.
\nc) if Enforcement is requested about part of the provision, which part is it.
\nDocuments to be added to the petition
\nArticle 53 – (1) the following documents are added to the request for enforcement:
\n(a) the original or judicial body issuing the declaration duly approved by the authorities of that country of the foreign court
\nan example approved by and a translation approved by.
\nb) approved by a letter or document indicating the completion of the application and duly approved by the authorities of that country
\ntranslation.
\nenforcement terms
\nArticle 54 – (1) the competent court makes a decision on enforcement within the following conditions:
\n(a) an agreement between the Republic of Turkey and the state to which the decommissioning was issued on the basis of reciprocity
\nor a law that makes it possible to enforce the declarations issued by the Turkish courts in that state
\nfinding a provision or actual application.
\n(B) the declaration has been issued in a matter that does not fall under the exclusive jurisdiction of the Turkish courts; or
\nthe defendant’s objection is that the application has not been granted by a state court that authorizes him if he has no real relationship with the subject matter or the parties to the case.
\nc) the provision is not clearly contrary to public order.
\nD) in accordance with the laws of this place, the court that rules the person who requested enforcement against him duly
\nhe has not been properly summoned or represented in this court, or is contrary to this law
\nhe was sentenced in absentia or in absentia, and this person was sentenced to one of the above considerations
\nbased on the fact that he did not appeal to the Turkish court against the request for enforcement .
\nTeblig and appeal
\nArticle 55 – (1) a petition related to the request for enforcement is notified to the opposite party along with the day of the hearing.
\nRecognition and enforcement of non-essential accident decisions are also subject to the same provision. Hasimsiz, conflict-free accident
\nin their decisions, the notification provision does not apply. A request is examined in accordance with the provisions of a simple judicial procedure
\nit depends on the decision.
\n(2) the opposing party, however, does not have conditions of enforcement in accordance with the provisions of this section or is foreign
\na reason for partially or completely fulfilling or preventing the execution of the court order
\nhe can object by suggesting that it has appeared.
\nDecision
\nArticle 56 – (1) the court decides on the partial or complete enforcement of the application or the rejection of the request
\nattributable. This decision is written under the foreign court order and sealed by the judge
\nit’s signed.
\nPath of fulfillment and appeal
\nArticle 57 – (1) foreign declarations decided on enforcement, such as declarations issued by Turkish courts
\nreferences
\n(2) appeal of decisions made regarding acceptance or rejection of the request for enforcement is subject to the general provisions.
\nThe appeal stops the execution.
\nE) Law No. 2675 on International Private Law and Procedural Law
\nEnforcement decision
\nArticle 34-it has been granted to civil cases from foreign courts and to the laws of that state
\naccording to the official Turkish court, the execution of the documents found in Turkey
\nit depends on the decision of enforcement.
\nEnforcement of the provisions on personal rights contained in the criminal declarations of foreign courts
\nhis decision may be requested.
\nEnforcement prompt<\/p>\n
Article 36 – request for enforcement becomes by petition. As many examples as the number of opposing parties are added to the petition. On petition
\nthe following considerations are included.
\na) the name, surname and addresses of the applicant, the opposing party and its legal representatives and proxies, if any,
\nb) from which state court the provision in question of enforcement was issued, and the application with the name of the court
\ndate and number and summary of the provision,
\nc) if Enforcement is requested about part of the provision, which part is it,
\nDocuments to be added to the petition
\nArticle 37-the following documents are added to the enforcement petition:
\na) the original and translation of the foreign court declaration duly approved by the authorities of that country,
\nb) approved by a letter or document indicating the completion of the application and duly approved by the authorities of that country
\ntranslation.
\nenforcement Terms
\nArticle 38-the competent court makes a decision on enforcement within the following conditions.
\n(a) an agreement between the Republic of Turkey and the state to which the declaration was issued on the basis of reciprocity or Dec.
\na provision of the law that makes it possible to enforce the declarations issued by the Turkish courts in that state, or
\nfinding the actual application,
\nb) the application has been issued on a matter that does not fall under the exclusive jurisdiction of the Turkish courts,
\nc) the provision is not clearly contrary to public order,
\nd) in accordance with the laws of that place, the court that rules against the person who requested enforcement is duly
\nhe has not been properly summoned or represented in this court, or is contrary to this law
\nhe was sentenced in absentia, and this person requested enforcement on the basis of one of the above considerations
\nKarsi did not appeal to the Turkish court,
\ne) authorized in accordance with the rules of the Turkish conflict of laws in a foreign declaration related to the state of the person of the Turks
\nthe law was not applied and the defendant, who is a Turkish citizen, did not object to the enforcement in this respect
\nit being.
\nTeblig and appeal
\nArticle 39-a petition related to the request for enforcement is notified to the opposite party along with the day of the hearing. Request,
\nit is examined according to the provisions of a simple trial procedure and depends on the decision.
\nThe opposing party, however, does not have the terms of enforcement in accordance with the provisions of this section, or a foreign court
\na reason arises that the declaration has been partially or completely fulfilled or prevented from being fulfilled
\nhe can object by suggesting he’s out.
\nDecision
\nArticle 40-the court may decide on the partial or complete enforcement of the application or the rejection of the request.
\nThis decision is written under the foreign court order and sealed and signed by the judge.
\nPath of fulfillment and appeal
\nArticle 41-foreign declarations decided on enforcement, such as those issued by Turkish courts
\nreferences
\nAppeal of decisions made regarding acceptance or rejection of the request for enforcement is subject to the general provisions.
\nThe appeal stops the execution.
\n2 – concepts and institutions related to the unification of the case law:
\nConsidering the subject of combining the case law described above, first of all, foreign
\nenforcement of court orders, public order and justification of court decisions
\nemphasis on concepts and institutions and regulations on all these issues
\nit needs to be evaluated.
\n2\/1-enforcement
\n2\/1. 1-concept
\nImplementation of an application by mobilizing the executive bodies of that state in another country, enforcement
\nit is only possible to connect its viability with the existence of a enforcement decision.
\nIn the country where Icra must be applied, there are conditions for enforcement in the decision of a foreign court for enforcement
\nit is possible and appropriate with the examination of the absence and the decision to be made in the results circle to be reached
\nwill be.
\nenforcement (exequatur) is explained in different forms in the doctrine. Decision of the foreign court of enforcement ,
\nin addition to seeing the force of final judgment and conclusive evidence in accordance, through Turkish executive bodies in Turkey
\nit is a court decision concerning the granting of enforceable power.
\nIn order for the decision of a foreign court to be sanctioned by the Turkish courts, from the relationship of private law
\nit must have been given to solve a dogan mismatch. (5718 PP. M\u00d6HUK m. 50)
\nCivil cases are a qualification related to procedural law, related to qualification
\nassessments and what kind of cases will be a civil case, according to the law of the country where enforcement is requested
\nit will be determined and evaluated according to.
\nIn another aspect, the foreign declaration must be finalized in accordance with the law of the country in which it was issued.
\nIn the case of enforcement , the legal benefit is first examined and the judge who will make the decision, only
\nwhether it carries the conditions required in Turkish law in order to enforce a foreign decision
\nafter examination, exequatur will be able to decide if the conditions are found.
\nThe law applied by the court of enforcement, the foreign court on the basis and its own procedure in the same way
\nability to examine whether it applies its provisions correctly and to examine the content of a foreign application
\nreferences (2675 PP. M\u00d6HUK m. 38 \/ c, 5718 P. M\u00d6HUK m. 54 \/ a, b, c, o)
\nHowever, if the foreign court application is clearly contrary to Turkish public order, enforcement is always
\nthe amir provision of the law No. 5718 is required.
\n2\/1. 2-Tenphysin Terms
\nLaw No. 5718 on private international law and Procedural Law No. 54. in the article, for the enforcement
\nits terms are regulated.
\nAccordingly, the first condition is based on reciprocity between the Republic of Turkey and the state to which the decommissioning was issued
\nan agreement based on or enforcement of the declarations issued by the Turkish courts in that state is possible
\nit is related to the fact that a provision of the law or actual application must be found. (m. 54 \/ a)
\nThe condition of reciprocity is not a condition related to citizenship, but to the court in which the decision is made, and the said condition
\nif it is not implemented, it can no longer be passed on to the study of other conditions.
\nAnother condition provided for in this article is that the application has the exclusive authority of the Turkish courts
\nif it was given in a matter that did not enter, or if the defendant objected, the application, the subject of the lawsuit, or
\na state court that grants it authority, even though it has no real relationship with the parties
\nit is a case of not being given (m. 54 \/ b).
\nHere, it is also sufficient to have legal or actual reciprocity other than contractual reciprocity; enforcement
\nthe laws of the state issuing the subject notice are enforcement of decisions made by Turkish courts in that country
\nif an actual application has been created in this regard, or if the basis of reciprocity exists
\nit means it’s real.<\/p>\n
Another of the conditions of enforcement is that defense rights have not been violated; the laws of this place
\nin accordance with the court that rules the person who requested enforcement against him duly
\nhe was not called or represented in that court, or in absentia in violation of these laws, or
\na decision has been made in his absence, and this person has requested enforcement on the basis of one of the above considerations
\nKarsi has not appealed to the Turkish court. (m.54 \/ O)
\nFinally, Law No. 5718 on International Private Law and Procedural Law 54 \/ c. references,
\nenforcement that the provision that is the subject of combining case law is not clearly contrary to public order
\nit is shown between the decks.
\nIn the face of this clear provision, enforcement of a foreign court application in cases of clear violation of public order
\nit is impossible to be done and performed in Turkey.
\nSo, at this point, the concept of public order, the determination of the violation of the provision of public order, the public
\nit is useful to examine the impact of order on enforcement, public order and the existence of justification.
\n2\/2-Public Order
\n2\/2. 1-concept
\nPublic order, according to each specific event, the nature of which varies according to time, place, the content of which is difficult to determine
\nit’s a changing concept. Law that has developed despite Ilmi openings and judicial decisions
\nalthough there is no definition even in their system, the rules that protect the basic structure and interests of society
\ndefinition can be made as a whole.
\nThe area of intervention of the concept of Public Order is extremely wide and accessible to interpretation. Provision without justification
\nacting from the concept of public order due to its existence, committed in the issuance of a foreign declaration
\nby examining the results of the procedure, the applied law, the execution of the declaration,
\nit is a very heavy result to say that the decision will not be able to be enforced by being contrary to public order
\nit will be creation.
\nCases that require a violation of Turkish public order are often in clear violation of an ordered provision
\nit will be considered. But in the case of a violation of each commandment or a violation of each commandment
\nit is not possible to say that the Foreign decision is contrary to Turkish public order.
\nSo, the framework of public order in domestic law, the basic values of Turkish law, Turkish general etiquette
\nand the understanding of morality, the basic understanding of justice on which Turkish laws are based, the understanding of Turkish laws are based
\ngeneral politics, fundamental rights and freedoms contained in the Constitution, common in the international sphere
\nrules based on the principle and the principle of goodwill of private law,
\naccording to the principles of law, which are the expression of the moral principles and understanding of justice that they adopt, society
\ncontrary to the level of civilization, political and economic regime, human rights and freedoms
\nit can be scratched.
\nPublic order in domestic law, which the parties must comply with, from public law and private law
\ndogan should only be understood as rules on which parties cannot freely save money.
\n2\/2. 2 – effect of public order on enforcement
\nHaving final judgment, conclusive evidence and enforcement power outside the country in which court decisions are made,
\nestablishing and creating economic relations brought about by personal and commercial life in the International Society
\nand a foreign person who is required, as well as a court decision without discussion, to resolve the disputes that have occurred
\nit requires recognition and acceptance of the declaration.
\nIt is impossible that such a necessity brings two dominions against each other. First of all, each state
\nit is necessary to protect its sovereignty and national interests, and secondly, international interests
\naccording to the Universal Declaration of human rights, the rule of respect for the requirements and rights of persons
\nit is the adoption of preservation and preservation.
\nActivity, enforcement in the country of another independent state, to the savings of sovereignty of a foreign country with enforcement
\nthe recognition of qualification.
\nA state that recognizes and enforces decisions of foreign courts, in principle, its own courts
\nhe gives up his authority to solve a mismatch that he is authorized to solve, almost on the incompatibility
\neliminating the power to save sovereignty by exercising jurisdiction by another state
\nallows removal.
\nIn particular, as a result of enforcement, the decision of the executive bodies of the state executed in its country, a foreign
\nthe fact that they will take action on the orders of the court will give much more effectiveness to enforcement and audit the content
\nit will bring along the doubt of viability.
\nWhat criteria will arise as a result of the uncertain nature of public order
\naccepting that the issue will arise on the grounds shown in the foreign declaration and with the provision ittihazed
\nreferences Audit of whether a foreign court decision is contrary to Turkish public order
\nduring the content inspection ban comes into play, this ban is eliminated at our discretion
\nit’s clear it can’t be removed.
\nAccording to the system adopted in the law on International Private Law and procedural law, by the judge of enforcement ,
\na foreign court decision cannot be examined on the basis and its compliance with the law cannot be controlled.
\nIn this case, the judge has the right to examine the content of the application other than the terms of the application and
\nhe has no authority. Acceptance of the opposite situation, enforcement judge, find himself in the position of the upper court
\nit leads to a conclusion in its form.
\n2\/2. 3-determination of the violation of the provision of public order
\nArticle 54 \/ c of the Law No. 5718 on International Private Law and Procedural Law,
\nthe fact that it is not clearly contrary to public order is considered within the conditions of enforcement.
\nAccordingly, the law applied in the issuance of a foreign court decision and according to what criteria it is
\nif the Foreign decision is executed in Turkey, the consequences that will occur in Turkey are Turkish
\nit is necessary to investigate whether it violates public order.
\nFrom the statement contained in the aforementioned article that the provision is not clearly contrary to public order,
\nthe law applied on the basis of the court’s decision cannot be examined in violation of Turkish public order,
\nonly if the legal consequences arising from the enforcement of the provision are contrary to public order
\nit should be concluded that the enforcement of the foreign court’s decision will be rejected.
\nThe fact that the law applied on the basis is different in Turkish law or the mandatory rules of Turkish law
\nfor reasons such as contravention, the enforcement of a foreign decision cannot be rejected. Here should be based
\ncriteria, the foreign declaration is found to be contrary to the provisions of one or more laws in Turkish law
\na lot, the basic values of Turkish law, Turkish general etiquette and moral understanding of Turkish laws
\nbasic understanding of justice and Legal Policy, fundamental rights and freedoms contained in the Constitution, common and accepted principles of law valid in the international arena, bilateral agreements, developed
\npolitical and Economic to the level of civilization, to the understanding of morality and justice that societies adopt in common
\nyou should be looking at your regime.<\/p>\n
2\/2. 4-existence of Public Order and justification
\nRule of law strengthen trust in the judiciary, alongside impartial and public judgment,
\nit is possible that decisions are written in a satisfactory and convincing manner in accordance with the judgment.
\nAs long as the law is not applied equally to all who are in the same situation, its glorification is impossible.
\nIt is clear that the rationale is related to public order. Justification rule with public interest, utility and order
\nit is the values that are made possible by its control that unite at the same intersection.
\nIn Democratic states of law, justification is not only based on a provision, but also on its content
\na person, society and the public with an interest in reality in the person of judgment, the judge and his effectiveness
\nby supervising, he takes on a role that anvils his receptivity. Justification is binding. Binding trial
\nthe procedure differs according to the intended purpose. The rationale must be inclusive and multiplicative.
\nFailure to evaluate the claims and cases put forward by the parties is a violation of the right to defense
\nin this case, it should be noted that the justification also comes into play. Because the court’s decisions are justified
\nit is a result of taking into account the claims and defenses put forward by the parties. Decision
\n141\/3 of the Constitution, in which these considerations are the subject of discussion. with the provision of the article this
\nCivil Procedure No. 1086
\nAct 388., Also open in articles 297 and 298 of the Code of Civil Procedure 6100
\nit’s obvious he’s committed to the ruling.
\nApproximation of private law of states to the justification of foreign court decisions Civil Procedure Law
\nis not the same. The justification for the decision is subject to the procedural laws of the state to which the judge making the decision belongs
\nas a rule, it will not create a violation of public order in the press.
\nViolation of the basic right of Defense and the fact that the decision is not justified are different considerations, the right of Defense
\nalthough the fact that it was not given would be contrary to public order in domestic law, the foreign declaration is not justified
\nit will not be contrary to public order as a cause only and alone.
\n2\/3-rating
\nMulga Law No. 2675 and Law No. 5718, which repeals this law, is a foreign
\ndocuments issued by the court in relation to civil cases may be enforced,
\nin addition, it has been accepted that criminal notices are subject to enforcement in their provisions on personal rights.
\nAll kinds of foreign court decisions made on material law claims in this case,
\na decision on enforcement is a decision that can be made.
\nA court decision granted in accordance with the procedural law of a foreign state, a court order
\nwhether it is qualified or not and the terms of conclusion, there is no doubt that it is exclusively the country in which the decision was made
\nthe procedure shall be appointed and determined according to the law.
\nThis has, as is known, been accepted in the inter-national area and in the implementation of the Turkish court Dec.
\nfound that the Lex fori principle in procedural law, in other words, is subject to the court’s own procedural law
\nit is a requirement of the principle that it should be.
\nAs a court order issued by a Turkish court is the own procedural law of a foreign state
\nif, according to its rules, it is unthinkable to qualify as an executive order or order, the foreigner in the same way
\ndetermination of the nature of a court order in accordance with the provisions of Turkish procedural law
\nit’s not a question.
\nAs a matter of fact, 54 for enforcement in the law on International Private Law and Procedural Law No. 5718.
\nfrom the conditions related to the procedural law provided for in the article, the procedure in which the court making the decision is of course
\nit is clear that it is acting on the principle that it can be evaluated according to its law.
\nIn this regard, a court decision adopted as a declaration in accordance with the provisions of its procedural law
\nLikening it to a regulation contained in Turkish Icra law, the warning to pay a certain amount of money
\nit is impossible to qualify as a containing order or payment order. So, a foreign one suitable for enforcement
\ndecision on enforcement if the court application carries conditions that are considered limited in law 5718
\nit has to be given.
\nOne of the conditions sought for enforcement is related to the intervention of the Turkish public order. Law No. 5718
\nAccording to Article 54 \/ c, in order for a foreign court application to be enforced, this court application
\nIt is a condition that the Turkish public order does not carry a provision that may require intervention.
\nHere, the only possibility that can ensure the rejection of the application of a foreign court is a foreign court Juliette
\nits provision or provisions are clearly contrary to Turkish public order. From the point of view of this condition
\nthe justification contained in the foreign declaration does not have the power to affect the enforcement of the declaration.
\nIt should be emphasized that from the point of view of the material law of the foreign court application of the enforcement judge
\nit is not authorized to examine and evaluate its accuracy. In accordance with this ban, the judge of enforcement
\nit is also out of the question to examine and evaluate the justification available in the ad.
\nIn other words, the presence or absence of a justification in the application of the provision contained in the application to the public
\nit is not important to determine its violation of the order. Foreign court demanding enforcement
\nin the declaration, there is or does not have a reason in the sense that Turkish Procedural Law is understood Turkish
\nIt is neither effective nor necessary for enforcement from the point of view of public order intervention. Acceptance of the contrary,
\nas a result of a retrial, the court that makes the foreign declaration untihaz
\nan undesirable situation will arise, such as becoming an audit and review body.
\nThe fact that the party decided against was not given the opportunity to exercise the right to defend the Turkish public
\nit is a situation that requires the intervention of the order. As a principle, each court has its own procedural provisions
\napplies (Lex Fori principle). For this reason, the procedure applied by the foreign court, the Turkish procedure
\nthe fact that it differs from the law is not a justification for the intervention of the Turkish public order.
\nThe same principle applies in terms of the rules of the law of proof applied in a foreign court application.
\nHowever, if a foreign court application is in a state of law, according to the Turkish understanding of law
\nprinciples of fair trial, which differ from the procedural Law Order and the rules of the law of proof, which may be
\nif, Of course, a procedure of a violating nature is given, the intervention of the Turkish public order is necessary
\na denial of the request may be applied. Especially the parties themselves to a sufficient degree
\na request for enforcement for a foreign court application issued in a procedural system that does not allow a defense
\nthere may be a rejection.
\nThe procedure of the case used by the foreign court in the case also requires the intervention of the Turkish public order
\nit’s not a procedure.
\nConstitution of the Republic of Turkey all kinds of decisions of all courts are written as reasoned
\nhe adopted the principle. (m. 141\/3) proceedings related to hearings in cases in Turkish courts
\n141. place in the decree of the article ordering the justification of all kinds of decisions
\nit is impossible to say that the concept of all courts in the field includes foreign courts.
\n141 of the Constitution. the principles established by the article in relation to the judicial procedure, exclusively Turkish
\nIt is a clear and non-weighing determination that will apply to their courts.
\nIt is a justification in the sense of Turkish Procedural Law, where the justification that the Turkish Code of Civil Procedure determines its form and material content is known. Asking or seeking a justification in this content to be found in a foreign court decision will undoubtedly not be associated with the Lex fory principle.
\nFirst, a justification in this content belongs not to the Constitution, but to the Turkish law of Civil Procedure
\nreason. Old 388 of the Turkish Procedural Code, new 297. form and material elements counted in the article
\nwaiting and looking for a foreign court decision to take part in, after all, one of these elements
\nor a foreign court eligible for enforcement, considering it if several of them are not available
\nit means preventing the enforcement of the declaration. This is a regulation of international Procedural Law and
\nIt is a form of opinion and understanding that Turkish enforcement law cannot accept.
\nLex fori principle, adopted in practice and according to scientific views, with its shape and material content
\nthe justification is determined by the law of each country itself and by the laws of other countries
\nit is a necessary and necessary concept to be accepted as justification. Despite this, the Turkish Constitution
\nThe rule of justification of court decisions may require intervention by the Turkish public order
\nit cannot be considered a commandment.
\nOn the other hand, the Turkish constitutional rule, which states that court decisions must be written on grounds
\nThere is no doubt that it is of a ordering nature for decisions made by its courts.
\nBut here, every ordering rule, even the constitutional rule, is related to fundamental rights and freedoms
\nTurkish public order in the application and consideration of foreign laws unless there are rules
\nremembering that it is also a well-known principle of public order that does not require intervention
\nneed to.<\/p>\n
Turkish enforcement law the provisions of foreign court decisions clearly violate Turkish public order
\nhe’s interested in whether or not. Moreover, the judge of enforcement to examine and consider the reason for the decision
\nhe was not even given the task and authority to receive it. Foreign court decision, procedural law of the country in which it was issued
\nhis rule is governed by the lex fory rule. Terms of enforcement how and to what extent these rules are enforced
\nhe has shown that he will block it separately.
\nIt can be seen that the Turkish Procedural Law has just entered into force in the foreign court’s decision
\n297 of the Code of Civil Procedure No. 6100. a reason in the sense of the provision of the article
\nits absence is not a phenomenon that requires the intervention of the Turkish public order in the press alone.
\nIn short; in principle, each court applies its own national procedural provisions, so the foreign
\nfor the intervention of public order, the procedure applied by the court is different from Turkish law
\nit’s not a motive. Same principle rules of proof law applied in foreign court decision
\nit also applies in terms of. Created and finalized without granting exclusive legal right to be heard
\na foreign court decision without justification was found to be contrary to Turkish public order for this reason alone
\nthe refusal of the request for enforcement by specifying will also contradict the Lex fori principle.
\nIn other words, in accordance with the provisions of its procedural law, in the sense of Turkish procedural law, its justification
\nfor this reason alone, the lack of justification of foreign court declarations that do not exist is an obstacle to enforcement.
\nit can’t be put forward as a reason. But the decision is based on the basic values of Turkish law, Turkish general morality and
\nunderstanding of etiquette, understanding of fundamental justice, fundamental rights and freedoms contained in the Constitution, international
\nprinciples applicable in the field, rules of wishful thinking related to private law, Political of the Turkish state
\nthe basic human being, which will shake the regime from the foundation of the economic structure of society
\nbecause violations of rights and understanding of justice will be considered violations of Public Order, foreign
\nby applying the provision clause of the court order, the foreign court shall establish the water consequences
\nenforcement of their decisions is not possible.
\nVI-result
\nThe lack of a foreign court finalized the absolute justification of foreign court decisions
\nInternational Private Law and procedure No. 5718
\nIn the sense of Article 54\/c of the law on the law, it will not be considered a clear violation of public order,
\nAt the first meeting held on 10.02.2012, it was decided by a plurality of votes, which hung two-thirds.<\/p>\n","protected":false},"excerpt":{"rendered":"
T.C. SUPREME COURT Grand General Assembly Base No: 2010\/1 Decision No: 2012\/1 Decision Date: 10.02.2012 Abstract: Turkish enforcement law foreign court decisions clearly violate Turkish public order he’s interested in whether or not. Moreover, the judge of enforcement to examine and consider the reason for…<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[217,223,220,218],"yoast_head":"\n