Divorce and Separation: an overview

A divorce formally dissolves a legal marriage. While married couples do not possess a constitutional or legal right to divorce, states permit divorces because to do so best serves public policy. To ensure that a particular divorce serves public policy interests, some states require a “cooling-off period,” which prescribes a time period after legal separation that spouses must bear before they can initiate divorce proceedings.

Courts in the United States currently recognize two types of divorces: absolute divorce, known as “divorce a vinculo matrimonii” and limited divorce, known as “divorce a menso et thoro”. To obtain an absolute divorce, courts require some type of evidentiary showing of misconduct or wrongdoing on one spouse’s part. An absolute divorce is a judicial termination of a legal marriage. An absolute divorce results in the changing back of both parties’ statuses to single. Limited divorces are typically referred to as separation decrees. Limited divorces result in termination of the right to cohabitate but the court refrains from officially dissolving the marriage and the parties’ statuses remain unchanged. Some states permit conversion divorce. Conversion divorce transforms a legal separation into a legal divorce after both parties have been separated for a statutorily-prescribed period of time.

Many states have enacted no-fault divorce statutes. No fault divorce statutes do not require showing spousal misconduct and are a response to outdated divorce statutes that require proof of adultery or some other unsavory act in a court of law by the divorcing party. Nevertheless, even today, not all states have enacted no fault divorce statutes. Instead, the court must only find 1) that the relationship is no longer viable, 2) that irreconcilable differences have caused an irremediable breakdown of the marriage, 3) that discord or conflict of personalities have destroyed the legit ends of the marital relationship and prevents any reasonable possibility of reconciliation, or 4) that the marriage is irretrievably broken.

Rental Agreements Under Turkish Law

By BERK ÇEKTİR
16.12.2009 Rental agreements under Turkish law (1)
I think it’s a good idea to write an article covering the general aspects of rental mat-ters. The following series of articles will cover some basics on rental agreements and will hopefully serve as a rough guide for expats, providing at least some insight into renting a house in Turkey.
I would also like to state that the purpose of this series is to cover residential rentals only; commercial rental agreements are a totally different story. As with everything, rental agreements are subject to exceptions, but seeing how many of them will not often be encountered by expats, I will not go into detail on them.
How is a rental agreement drawn up? Rental agreements are, generally speaking, not subject to any form requirement, with some exceptions.
Rent payment time Landlords usually ask for upfront payment, meaning you pay the rent on the first day for the coming week/month. The payment date and time depend totally on your agreement with the landlord. You can agree to pay your rent one year in advance or pay each month, for example.
Get a receipt upon each payment The best way to get a receipt is to make all such payments through bank transfers. In fact, receiving rent in cash if it amounts to over TL 500 per month carries a fine. A communiqué issued on July 29, 2008 says that, beginning from Nov. 1, 2008, it is a statutory obligation to receive rental income through a bank or postal office money order. The purpose of this declaration is to avoid undeclared rental income. The com-muniqué states that the landlord is obliged to collect the rent for the residential proper-ty via bank account if the monthly rental income is TL 500 or higher. Breakdowns or calculation charts drawn up by banks and postal offices are enough to substantiate payment. Documents printed out from a bank’s Web site are also accepted as proof of payment.
If you are still asked to pay in cash, don’t pay your rent unless the landlord gives you a bank account. If the receiving party does not agree to accept the money via bank transfer, get a written receipt stating: a) amount of payment; b) date of payment; c) reason for payment; d) full and correct name of receiving party; e) full and correct name of paying party; and f) signature of receiving party.
Deposit payment
Here is the point that hurts the most when it comes to a rental agreement. In the eyes of the property owner, his/her property is intact and wonderful and excellent in all
ways. It therefore needs no repair and no paint job, and everything is working proper-ly. The landlord therefore always asks for a deposit that s/he will probably not return at the end of the term. Be prepared to not get it back. I would recommend you take photos of the house on the day you move in — especially if there are items that need to be repaired. Keep the photos in your files for future use to defend your claims.
Get a separate receipt for the payment of the deposit. The rental agreement may not show that you have actually paid the deposit.
………………………………………………….
By BERK ÇEKTİR, 21 December 2009
Rental agreements under Turkish law (2)
In my previous article, I mentioned that it is a good idea to get a separate receipt for the payment of a deposit and that a rental agreement may not be evidence that you have actually paid a deposit.
The wording in the standard agreement only states that “a sum of … TL shall be paid as deposit upon the signing of this agreement.” As you can see, it does not say that the deposit has actually been paid; it refers to a future action which should take place upon signing. This requires the tenant to get a separate receipt for the payment of a deposit or to change the wording of the agreement in line with the payment.
Increase in rent rates In regard to an increase in rent rates, I will avoid mentioning figures here as some readers will misunderstand and mistakenly take it as a determined constant num-ber. I strongly recommend that you go through a professional — and if you cannot afford it, to a Turkish friend at least — and find out the rate of rent increases through the Turkish Statistics Institute (TurkStat).
Language of the agreement You should not sign an agreement that you do not understand. It will not be clear what has been agreed with the landlord unless you are proficient in speaking and reading Turkish. I would advise you not to enter into contracts written in Turkish unless you have an excellent command of the language or you get assistance from a professional. You should contact a lawyer, or if you cannot afford it, at least consult your real estate agent about the wording of the agreement you are signing. If you have used the services of a real estate agent when renting a house, they should do this inclusive of their services. However, never forget that the real es-tate agent will be eager to close the deal and may not be too careful about transla-tion. It is solely up to you whether you trust them or not.
Don’t forget that you will be signing a valid and binding contract or agreement even though it is in Turkish. You could try to get the agreement in both languages on the same page which may help you in case of a problem
Bills for utilities I received a question from a dear reader named John, and it might be a good time to respond to this question now. It reads: “Why is it that the electricity company in Turkey forces the new tenant [or the landlord] to pay the outstanding electric bill of a previous tenant rather than pursuing the actual debtor? This matter has always seemed grossly unjust. Thanks, John.” Dear John, it is unjust, but a fact. The electricity company should get the appropriate security first when the con-tract commences and should cut off the electricity as soon as possible when bills go unpaid. As far as I know, the utility companies’ new practice is now based on an upfront payment, or in other words, “pay as you go” or “go as you pay.”
It might be a good idea to check if there is any amount due from the former tenant and ask the landlord to clear it before you move into the house. If you want to register the utilities in your name, you must submit a valid resi-dence permit to the utility company.
…………………………………………………………………
23 December 2009
Rental agreements under Turkish law (3)
This will be the final part of this series on rental agreements. I will check all questions and recent legislation and update this series every year since this is a very common matter for almost all expats who are either tenants or landlords.
Notifications Notifications regarding rental agreements are generally made through a notary public. This is not a general form requirement, but using a notary public is pre-ferred. In some cases, sending notifications through a notary public is a form require-ment regardless of whether the rental agreement is a written agreement or not. In the event a tenant is making rental payments later than the agreed date of payment or if there is no payment, the landlord should notify the tenant through a notary public. The notification should refer to the payment date and proof of the late payment.
Addresses for notification The addresses in an agreement are always important so the parties to the agree-ment know each other’s addresses. During the term of the rental agreement, the address is the premises. The address of the tenant may be more important since the tenant may be subject to a notice (for instance for not paying for repairs that were made after the premises were vacated) after the agreement is terminated. In such cases, it might be a good idea to write down a second address that one can use after the termination of the agreement. This will help you avoid a large bill from a lawyer several years after the termination of the agreement.
Termination The parties can terminate the agreement according to the termination clause. This clause is usually in favor of the landlord. However, Turkish law provides a special way for the landlord to ask the tenant to vacate a rented premises. When you terminate a contract, make sure that you have really terminated it. This means that you should have written proof of termination.
Declaration for vacating Most landlords will expect the tenant to sign a declaration that the tenant will
leave the premises at the end of the term. This declaration is actually not really binding under Turkish law if it is signed only by the parties but without any official authority’s participation. Such a declaration is only valid if it is signed before a notary public on a later date, after the rental agreement is signed.
There are various precedents from the Turkish high court stating that such a dec-laration that is signed at the same time of entering into a rental agreement should not be valid. The reason that this declaration can be invalid is granted by Turkish law on the basis of balancing the parties’ power. When signing a rental agree-ment, the tenant is deemed to be the weaker party. Turkish law automatically protects tenants’ rights since the tenant may be under the pressure of the lan-dlord. Usually the tenants are ready to accept various conditions required by the landlord that they would not accept under normal circumstances.
There are several other matters to write about concerning rental agreements such as the power of signature. Make sure that you are signing the contract with the correct person.
I am planning to write a more comprehensive article later next year.
Finally, I strongly recommend that you consult a lawyer when signing a rental agreement or any declaration that may contain hidden clauses that could put you in trouble in the future.
NOTE: Berk Çektir is a licensed attorney at law and available to answer questions on the legal aspects of living in Turkey. Send enquiries to b.cektir@todayszaman.com. The names of the readers are disclosed only upon written approval of the sender.

Author: By BERK ÇEKTİR

Durable Power of Attorney for Finances

Durable Power of Attorney for Finances

I, [name] who resides at

[address], do hereby appoint

who resides at [address]

to act in the capacity of my agent. If this person should be unable to fulfill his/her

appointment due to death, illness or unwillingness, then I appoint

[name] who resides at [address] as

successor agent.

I grant the following powers and authority to my agent appointed above:

Power to execute generally:

To execute any written instrument regardless of the nature, including but not

limited to checks, contracts, agreements or drafts.

Power to make property transactions:

Regarding all property and property rights of mine, whether now or hereafter

owned by me or due to me, my attorney-in-fact shall have the power:

To receive income owed me on my property and to execute and deliver any

receipts, releases or discharges relating to this income.

To sell, lease, transfer or exchange any of my property as my attorney considers

appropriate at competitive prices and with any other terms and conditions as may be

required; and to execute and deliver any deeds, leases, powers of attorney or other

agreements or covenants that my attorney considers appropriate;

To make demand and to institute, maintain and prosecute, compromise, settle or

dismiss actions for the recovery, collection and receipt of any goods, chattels, debts,

claims, demands, rents, duties or choices in action due me, and to defend any action that

may be instituted against me;

To contract and pay for any services or goods required by my dependents or me.

Power to engage in banking and investing:

To engage in any banking transactions, including but not limited to signing my

name, and to withdraw money deposited in my name in any bank, including entering into

my safe deposit box, opening new accounts or closing accounts;

To pay any debt, claims and demands for which I may liable, and regardless of

how they are evidenced;

To sign, endorse, execute and deliver written instruments which I would at any

time execute or endorse, including but not limited to promissory notes, acceptances,

renew checks or other evidences of indebtedness;

To settle claims and demands for which I am liable, or which are due me, and

execute any written documents pertaining to these transactions including but no limited to

receipts, releases and discharges;

To grant extensions in situations including but not limited to debts owed me,

claims made by me or demands due me;

To invest my money in such loans, bonds, notes, common, preferred or other

stocks, securities, mortgages, annuities, real estate, partnership interests or other property,

real or personal, as my attorney considers appropriate;

To exercise, buy or sell any options or exchange conversion, and/or subscription

rights for any securities or other property; to vote securities; to consent to, or dissent

from, the reorganization, re-capitalization, consolidation, merger, liquidation or charter

amendment of any corporation or other organization, any of the securities of which may

at any time be held by me; to consent to, or dissent from, the sale, mortgage, pledge, lease

or distribution of any of the property of any such corporation or other property with any

protective, reorganization or similar committee, delegate discretionary power thereto and

pay and agree to pay related expenses and assessment; and in general to do any act with

reference to the matters in this paragraph which my attorney may deem necessary or

advisable in connection therewith, such as the granting of proxies, making of agreements

or subscriptions and the payment of expenses, assessments or subscriptions;

To borrow money for me from the attorney personally or others, upon any terms

and conditions, at any time or times, and for any purpose, all as my attorney considers

appropriate; and to execute and deliver any bond, note or other written evidence of debt,

and, as security therefore, to give any mortgage, deed of trust or other security instrument

as to any of my property and to endorse, assign, pledge and hypothecate any securities,

insurance policies or other tangible or intangible personal property;

Power to handle legal affairs:

To employ and compensate attorneys, accountants and other agents with personal

liability for neglect or wrongdoing of any of them selected with reasonable care;

To represent me before any administrative or judicial body in any proceeding;

Power to obtain insurance:

To effect insurance upon any property owned by me in any reasonable amounts

and on any reasonable terms my attorney considers appropriate; to sign an application or

other document to obtain such insurance; to surrender and rescind any insurance policy

obtained by either my attorney or me; and to assign any policy upon any of my property;

and

Power to pay taxes:

To execute any federal, state, county, municipal or other income, gift or property

tax returns or declarations of estimated tax and to exercise related options;

I give my attorney-in-fact full authority to perform every necessary and proper act

as fully as I could if personally present, with full power of substitution and revocation,

hereby ratifying and confirming all that my attorney-in-fact or substitute shall so lawfully

do. The rights, power and authority to my attorney-in fact that I now grant shall become

effective (choose one below):

as soon as I affix my signature to this document; or

upon my incapacity or disability, which shall be certified by two

physicians.

Such rights, power and authority shall remain in force and effect until terminated

by written notice given by me to my attorney-in-fact.

If it becomes necessary for a court to appoint a guardian or a conservator for me, I

nominate my agent or successor agent named above to be guardian or conservator.

This power of attorney shall not be affected by disability of the principal. I intend

my attorney to have all of the foregoing powers irrespective of my capacity from time to

time to act for myself. I also intend that any action taken hereunder by my said attorney

in good faith after my death, but without actual knowledge of my death, and which is

otherwise valid and enforceable, shall inure to the benefit of myself and my heirs,

devisees and personal representatives.

IN WITNESS WHEREOF, I have hereunto set my hand at ____________

[your signature], this _______________ day of ________________, 20___.

______________________________ _________________________________

Witness Signature

STATE OF ________________

COUNTY OF ______________, to wit:

I HEREBY CERTIFY that on this _________ day of _______________, 20 ____,

before me, the subscriber, a Notary Public in and for the State of _______________,

County of ___________________, personally appeared _____________________[name],

known to me or satisfactorily proven to be the person whose name is subscribed to the

within instrument, and acknowledged that s/he executed the same for the purposes therein

contained.

WITNESS my hand and notarial seal.

______________________________

Notary Public

My commission expires: _________

WITNESS ATTESTATION

The forgoing instrument was signed, published and declared by

as his/her Durable Power of Attorney for Finances in the presence of us and we, at his/her

request, and in his/her presence, and the presence of each other, have hereunto subscribed

our names as witnesses the day and year written above.

NAME ADDRESS

Signed

Printed

Signed

Printed

Signed

Printed

IMPORTANT NOTE: This sample legal document is provided for informational purposes only and may or

may not be valid in your particular state. This sample legal document also may not include the particular

provisions you need. We strongly recommend that you consult a competent family or estate planning

attorney who is familiar with these issues. This sample legal document in no way constitutes, and should

not be relied upon, as legal advice.

Buying property in Turkey

The interest in real estate investments in Turkey has clearly got with private individuals as well as at company during the last years. We would like to create an overview about the real estate acquisition in Turkey with this professional contribution. However, the professional support is recommendable by a sollicitor to bend forward all potential risks of a real estate purchase in Turkey.

I. Development of the Turkish property market

The stabilisation of the economy and progress in the accession trial in the European Union during the last years has woken the interest of the foreign investors in Turkey. Real estate industry has also profited itself from this positive development. The real estate prices in Turkey rose with it from 2002 to 2006 very strongly also thanks to the domestic demand. Even if the prices do not rise from 2006 any more as strongly as during the previous years, real estate purchase is recommended in Turkey as an investment furthermore, because the real estate demand because of the young population structure of the country will increase.

II. Legal basic conditions of the real estate acquisition through foreigners in Turkey

The principles about the real estate acquisition of foreigners in Turkey were regulated originally in the land register law with the number 2644 from 1934. In 2003 the government with the law Nr. 4916 has made easier the real estate acquisition for foreigners in Turkey. With this legislation amendment foreign-juridical restrictions concerning were lifted by properties in the village law No. 442 / in 1924 (Köy Kanunu) and land register law No. 2644/1934 (Tapu Kanunu). However, the law No. 4916 was contested briefly late by the constitutional court. On it the government according to the submissions of the constitutional court has anew regulated the legal situation about the acquisition of real estate by foreigners in Turkey with the law No. 5444 from the 29.12.2005.

The law No. 5444 from the 29.12.2005 is become effective on the 07.01.2006. With this law became article. 35 of the land register law No. 2644 (Tapu Kanunu) changed and the new basic conditions of the real estate acquisition in Turkey by foreign private individuals as well as companies.

After the current legal situation foreigners can acquire real estate in Turkey with the only following restrictions:

Mutuality principle: The real estate acquisition through foreigners in Turkey follows above all after the mutuality principle. This means that citizens are entitled only from the countries which permit the acquisition of real estate to Turkish citizens as a countermove to purchase real estate in Turkey. Turkey stands with all western countries in the mutuality relation. The current list of the countries with which Turkey stands in the mutuality relation can be read up on the website of the Turkish land registry and cadastral office (www.tkgm.gov.tr) into Turkish and English language.

Surface restriction: Foreigners may acquire in Turkey up to 2.5 hectares (25,000 square metres) of property for residential purposes and trade purposes freely of licence. The licence of the council of ministers is necessary for bigger surfaces up to 30 hectares. Besides max. 0.5% of the total area of a province may be acquired by foreigners.

Local restriction: Foreigners may acquire only in areas a real estate in which a certified land-use plan or local land-use plan gives. Except these places a real estate acquisition through foreigner is not allowed. In addition, an acquisition is excluded in military locking – and security zones. An exemption confirmation of the responsible military management can under certain circumstances be necessary for the transference in the land registry.

Exception: Acquisition through heirship. The abovementioned restrictions find no application with the real estate which was transferred in the way of an heirship on citizens by states with which Turkey stands in the mutuality relation.

III. Liquidation of a real estate purchase in Turkey

According to Turkish right the conveyancing on corresponding declaration of intention of the seller and buyer is carried out exclusively in the land registry. The contract negotiation is dealt with only in the land registry.

In contrast to other many countries notaries are not involved in the liquidation of conveyancing. The parties or their sales representatives (authorised by notarial authority) must deal with the transference and other audits which is carried out in Germany predominantly by the notary.

By the transference in the land registry a sworn in translator must be available if the foreign contracting party doesn’t speak the Turkish language. For the liquidation in the land registry personal bases and information of the foreign contracting party must be prepared in the approach.

The registration in the land register of properties (flats) cannot last with foreign buyers up to 3 months because the land registry has to request before the registration by the military management whether the concerning property is in a military catchment area.

After the transference an extract from the land register called “Tapu Senedi” is handed over to the new owner of the real estate.

In case of a real estate purchase in Turkey we recommend absolutely to take up corresponding consultation with a lawyer. Because in Turkey no notary is involved in the purchase procedure, the buyer should himself check up in own interest whether there are some tax liabilities, barriers or costs in favour of from third in the land register entry of the real estate. The consultation and assignment of an experienced Turkish sollicitor can protect you also to other risks by salemen and brokers etc.

IV. Taxes by the real estate purchase in Turkey

With conveyancing of a real estate in Turkey seller and buyers pay in each case 0.15% (15 of thousandths) of the purchase amount as a land register fee. Then the buyer must announce the acquisition of the real estate of the responsible city administration and the tax office within 3 months after the transference. It is calculated yearly a real estate-tax.

Overstaying in Turkey

According to the new regulation and a recent announcement by the Turkish Ministry of Interior, this entry ban will only be lifted in case the overstayed person applies to the Turkish missions abroad for the relevant type of visa such as work, family reunion, study, long term residence, meeting, conference, cultural activity etc.

The visa applications will be forwarded to the Turkish Ministry of Interior for approval and the relevant type of visa will be issued after the Ministrys instruction.

Once the visa is granted, then it is possible to travel to Turkey and pay the fine at the port of entry.

Pension Vesting can be?

Pensions not vesting. However, the borrower and the borrower in case of a pension to the vesting in that consent. Without the Executive Directorate’s sequestration by the borrower and is this sequestration removed, placed the retired salary. Retired Deputy Chief Executive of the removal of the debtor’s sequestration or imposed Directorate were internationally certified after attending should request. The Executive Directorate and with this reference to sequestration imposed is removed. Despite the reference of the Executive Directorate by the law of the Court placed on the retired officer, you can complain about the process of sequestration were left in the Executive.

Representative Agreement

REPRESENTATIVE AGREEMENT

This agreement is made on the ../../20..

BETWEEN

1) HOLLYWOOD Ltd Having its principal place of business and head Office at Jinhui Town, Shanghai,China (herein after referred to as the MANUFACTURER) and

2) Bay.XXXXXXXX and BayanXXXXXXXXX having his principal place of business and head Office in Buyukdere Cd. Sisli İstanbul / Turkey (hereinafter referred to as the REPRESENTATIVE)

CLAUSE 1. PRODUCTS :

MANUFACTURER grants REPRESENTATIVE right for tempered glass lid

CLAUSE 2. PRODUCTS :

MANUFACTURER hereby appoints the second party as one of his ‘REPRESENTATIVE’ in Turkey

CLAUSE 3. MARKETING RIGHTS :

a) MANUFACTURER grants REPRESENTATIVE the rights to market the above mentioned products to any customer or resident with its principal place of business in the REPRESENTATIVE’s countries.

b) Representative will only market the mentioned products in the above country and not in any other country.

c) REPRESENTATIVE will be liable for his customers.

d) After getting the order and confirmation of payment as agreed all responsibility will be of the MANUFACTURER

(Responsibility shall be against any Manufacturing Default from the factory to the Port of Disembarkation, REPRESENTATIVE shall appoint Quality Control Inspector to inspect each shipment before being shipped. All claims of damage shall rely on the report from Qualified QC inspector.

e) MANUFACTURER will send the sample to POTENTIAL CUSTOMERS. POTENTIAL CUSTOMERS shall bear all cost of transportation of the samples requested.

CLAUSE 4. PRICING :

MANUFACTURER has the right of reviewing the prices of material. In any change, MANUFACTURER will inform REPRESENTATIVE in a week.

CLAUSE 5. SALES PRICE :

REPRESENTATIVE will market the products with same prices of MANUFACTURER. REPRESENTATIVE will only take commission of 3 % from the total cost of FOB.

CLAUSE 6. PAYMENT :

REPRESENTATIVE will be paid after the order payment has been paid into MANUFACTURER ACCOUNT. Commission rate will be on FOB based.

CLAUSE 7. REPRESENTATIVE’S OBLIGATIONS:

REPRESENTATIVE shall :

a) Use his best endeavors to maintain, increase, and promote the sales of products in his regions. He should sell minimum 20,000pcs per month for the first five months, and 200,000pcs per month after the first five months.

b) REPRESENTATIVE does not have the right to promote, market any other similar or related materials produced by any other manufacturers or traders

CLAUSE 8. MANUFACTURER’S OBLIGATIONS:

MANUFACTURER shall:

a) Supply the products as ordered by REPRESENTATIVE on the basis of previous order confirmation and payment receipt.

Bilkent University Faculty Of Law

The Faculty of Law offers a broad set of courses concerning all challenging dimensions of contemporary Law. The curriculum is structured to provide the students not only with knowledge in classical and substantial areas like constitutional law, administrative law, civil law, commercial law and criminal law, but also with basic professional information in other fields requiring an international perspective of specialization like competition law, intellectual and industrial property law, international commercial arbitration, European Union Law and international business law.

The courses consisting of the Turkish positive law with national character are given in Turkish while some others representing an international character and/or which could be learned in a foreign language like International Business Law, European Union Law, International Human Rights Law etc. are given in English. The basic philosophy of the Faculty is not to be a school of a profession” but to have a character of a forum where the students could gain, in addition to basic professional knowledge, a scientific legal approach to follow and participate in the permanent development of the world facing the challenge of globalisation. The Faculty is conscious of the fact and the graduate program is structured in such a way that the students shall have the opportunity to gain and develop the ability of determining, searching for and achieving the appropriate information they need.

Osman Berat Gürzumar, Ph. D., Dean

Bilkent University Faculty of Law

The Faculty of Law offers a broad set of courses concerning all challenging dimensions of contemporary Law. The curriculum is structured to provide the students not only with knowledge in classical and substantial areas like constitutional law, administrative law, civil law, commercial law and criminal law, but also with basic professional information in other fields requiring an international perspective of specialization like competition law, intellectual and industrial property law, international commercial arbitration, European Union Law and international business law.

The courses consisting of the Turkish positive law with national character are given in Turkish while some others representing an international character and/or which could be learned in a foreign language like International Business Law, European Union Law, International Human Rights Law etc. are given in English. The basic philosophy of the Faculty is not to be a school of a profession” but to have a character of a forum where the students could gain, in addition to basic professional knowledge, a scientific legal approach to follow and participate in the permanent development of the world facing the challenge of globalisation. The Faculty is conscious of the fact and the graduate program is structured in such a way that the students shall have the opportunity to gain and develop the ability of determining, searching for and achieving the appropriate information they need.

The Foundatıons of Turkısh Law

Towards the end of the 1900’s, many European countries codified much of their law both public and private. On the other hand, in the Anglo Saxon countries the notion of uncodified law prevailed, and many rules are derived from customary laws and judicial precedents. Turkey has followed many European countries and codification of many European laws. Legislative branch has become the most important foundation of the Turkish law.

The Foundatıons of Turkısh Law

I. INTRODUCTİON

The order or pattern of rules that society uses to govern the conduct of individuals and their relationships is called law[1]. Law keeps society running smoothly and efficently. Law consists of the body of principles that govern conduct and that can be enforced in court or by administrative agencies. The law could also be described as a multitude of rights. A right is a legal capacity to require anothor person to perform or refrain from performing an act. Our rights flow from the Turkish Constitution, statutes and ordinances.

The foundation of the Turkish law of a current legal system may be found in Roman law or practices or moral laws applied in bygone ages. Until the 12th century, law in the western world operated on several primary levels. Collections of written laws such as the Augustinian Code or the Code of Charlemagne(both traceable to Roman law) created a broad written legal framework[2]. This basic system still prevails in many European countries and is known as the “civil” law[3].

Towards the end of the 1900’s, many European countries codified much of their law both public and private. On the other hand, in the Anglo Saxon countries the notion of uncodified law prevailed, and many rules are derived from customary laws and judicial precedents. Turkey has followed many European countries and codification of many European laws. Legislative branch has become the most important foundation of the Turkish law.

II. THE FOUNDATİONS OF TURKİSH LAW

The foundations of the Turkish law may be written or unwritten rules. The written rules may be classified in to six categories. There is only one unwritten law ın Turkish system. It is called “customary law”. We will examine the foundations of the Turkish written law first. These are as follows;

A. The Written Laws

The foundations of the Turkish written law is classified in seven categories[4]. These are constitution, statutory law, international treaty, statutory decrees, regulations, by-laws, court decisions and doctrine.

1. The Constitution

The term “constitution” refers to either the structure of the government and ıts relation to the people within ıts sphere of power or the written document setting forth that structure. A constitution is a body of principles that establishes the structure of government and the relationship of that government to people who are governed. Constitutional law is the branch of law that is based on the constitution for a particular level of government. The Turkish Constitution sets forth not only the structure and powers of government but also the limitations on those powers. Turkey has a prominent place among today’s developing countries by the length of its experience.

The Turkish Constitution establishes a tripartite government: a legislative branch to make the laws, an executive branch to execute the laws, and ajudicial branch to interpret the laws. The Turkish Constitution provides that the Turkish Parliament[5] has sole authority to enact laws for application throughout Turkey. The 7th Article of the Turkish Constitution provides that “legislative power is vested in the Turkish Parliament. Members of the Turkish Parliament are popularly elected by the Turkish citizens for a term of five years.

According to the Turkish Constitution, the basic characteristics of the Turkish Republic have been described as “a democratic, secular, and social state governed by the rule of law, in accordance with the concepts of social peace, national solidarity, and justice; respectful of human rights…”

The supremacy of the constitution is expressed clearly in the 11 the Article of the Turkish Constitution which states that “laws shall not be in conflict with the constitution.

2. The Statutory Law

The expression “law” is ordinarily used to indicate a statute enacted by the Turkish Parliament[6]. The statutory law includes this legislative acts declaring, commanding, or prohibiting conduct. Statutes are applied in all parts of Turkey and all Turkish citizens, and aligns are subject to them. An act of the Turkish Parliament to provide leave for officers medical needs is an example of a statutory law.

Statutes are applied until they are abrogated or changed by a new statute. The Turkish Paliament permits both making new laws and abrogating old ones and is an essential instrument for the regulation of modern social life. The Turkish Parliament has become the most important foundation of law.

Bills may be introduced either by the Council of Ministers or by members of the Turkish Parliament. The statute passed by the Turkish Parliament are promulgated by the President of the Republic within fifteen days. The President may, within the same period, refer the law back to the parliament for reconsideration. If the parliament again passes the statute in its original version(without new amendments), the President has to promulgate it.

3. International Treaty
The foundation of the Turkish law also includes treaties made by the Turkish Republican. International Treaties to which Turkey is a party are approved by the Turkish Parliament by enactment of a law. Technically, therefore, international treaties are statutes become enforceable after their publication in the Offical Gazette. Some international treaties become binding without the official approval of the Turkish Parliament such as economic, commercial and technical treaties(The Constitution 90.m)

4. The Statutory Decrees

The Turkish Parliament may authorize the Council of Minister by special statute, to issue statutory decrees on certain topics[7]. In these special statutes the scope, principles, and duration of the power to issue statutory decrees are clearly stated. Statutory decrees become enforceable on the day of their publication in the Offical Gazette, and they are submitted for the review and approval of the Turkish Parliament on the day of their publication. Statutory Decrees cannot subject to the fundamental liberties and political rights of individuals.

5. Regulations

The Council of Ministers has the power to make regulations that regulate for enforcement of statutes[8]. According to the Turkish Contitution, such regulations must have been examined by the Council of State, signed by the President of Republican and promulgated in the same manner as statutes. Regulations cannot contain provisions contrary to statutes. In the hierarchy of laws, therefore regulations come after statutes and contain more concrete rules than statutes.

6. By- Laws

Late in the last century, a new type of governmental structure began to develop to meet the highly specialized needs of government regulation of life. An administrative agency is a government body charged with administering and implementing legislation. An administrative agency may be prime ministry, the ministries, and public corporate bodies such as universities and municipalities. These administrative agencies have the power to make “by laws”[9], in conformity with statutes and regulations in order to regulate a particular segment of life or business.

By laws adopted by these agencies may be intended to interpret or clarify the statute and regulation.

7. Court Decisions

Courts have been created to hear and resolve legal disputes. A court’s specfic power is defined by its jurisdiction. Courts of original jurisdiction are trial court, and courts that review the decisions of trial courts are appellate courts. Turkish courts are bound to make their decisions in conformity with the statutory law, the function of the judiciary being to interpret and apply the law.

In Turkey certain precedents are follower. Thus lower trial courts are bound by some decisions of the Supreme Court and the Supreme Court in turn is bound by some of ıts own decisions.

8. Doctrine

Doctrine is a subsidiary foundations of Turkish law. The research of the legal authority, or jurist, is to discover by logical analysis the several possible interpretations of laws and to indicate their practical consequences. The studies of juristic are not an independent “source of law”, although in some cases juristic opinion leads to the formation of law.

B. Unwritten Laws: Customary Law

As unwritten law, we will examine customary law. Customary law may give us some insights into the development of law. Written laws have mainly developed from customary law. Customary law constituted and observed course of conduct of the society.

For a customary law to have legal validity in the Turkish system. It must be (1) antiquity, (2) countinuity, (3) popular belief in rightness of a custom law, (4) state sanction, (5) agreement with statutory law. In the first Article of the Turkish Civil Code states that “… there is no applicable provisions, the judge should decide according to existing customary law….”.

III. CONCLUSİON

Turkish law consists of the pattern of rules established by society to govern conducy and relationships. These rules can be expressed as constitutional provisions, statutes, administrative regulations, and case decisions. Law can be classified as substantive or procedural, and it can be described in terms of its historical origins, by the subject to which it relates, or in terms of law or equity.

The foundations of the Turkish law include constitutions, statutes, administrative regulations, bylaws, court decisions, doktrine, and customary law.

* Gazi Üniversity Economics & Administrative Faculty, Çorum/TURKEY
[1] . OVACIK, M., English & Turkish Law Dictionary, 1986, s.196.
[2] . ELİAS, Stephan/LEVİNKİND, Susan., Legal Research, How to Find & Understand The Law, 1999 US, s.3.
[3] . A legal tradition called the “common law”, quite different from that of the civil law, developed in England after the Norman conquest in 1066.
[4] . GÜRİZ, A., Introduction to Turkish Law, “ Sources of Turkish Law”, 1987, s. 6 vd.
[5] . Turkish Parliament is called “the Turkish Grand National Assembly”
[6] . GÜRİZ 7.
[7] . GÜRİZ 8.
[8] . OVACIK 272.
[9] . OVACIK 51.

Outhor: Yrd. Doç. Dr. Mustafa CAN