Introduction to Law PDF

Introduction to Law Ögr. Gör. M. Eren GÜÇARSLAN  BASIC CONCEPTS OF LAW These concepts are, in general, rights, duties, obligations, legal transactions, contracts and settlements. Law - Right The word "law" is used in daily language and doctrine to mean...

Introduction to Law Ögr. Gör. M. Eren GÜÇARSLAN  BASIC CONCEPTS OF LAW These concepts are, in general, rights, duties, obligations, legal transactions, contracts and settlements. Law - Right The word "law" is used in daily language and doctrine to mean various things. Sometimes used as a stand-alone concept, law is also used in the form of compound phrases formed by adding some adjectives to it. Let us now explain these usages and their meanings. Law, which is an Arabic word in terms of its origin, also means "rights", which is the plural of the word "hak". However, since the concept of "right" and the concept of "law" are expressed with different words in Turkish, it would be wrong to say that the equivalent of the word "law" in our language is "rights". As a matter of fact, the words "Droit" in French and "Recht" in German are used in place of both the concepts of law and rights. However, in these languages, law and right are conceptually distinguished from each other by using the concepts of objective and subjective together.  BASIC CONCEPTS OF LAW Thus, "Droit objectif" or "Objektives Recht" refers to the concept of law, while "Droit subjective" or "Sübjektives Recht" refers to the concept of rights. The word law is sometimes used to mean "a system of binding legal rules". When we say that a situation is against the law or that the law commands something, we use the word in this sense. Likewise, when we say "Turkish law" or "Swiss law", we mean this meaning. On the other hand, the word "law" is sometimes translated as the branch of science that studies and includes the rules of law. Just like in the phrases "law faculty", "law book", "law professor". It is even possible to use the word law only in the sense of "private law".  BASIC CONCEPTS OF LAW In this sense, law refers to the area outside the concepts of "administrative" and "criminal". Because when we say "civil case", we mean cases that are not "administrative cases" or "criminal cases", i.e. cases related to the sub-branches of private law. When the concept of law is used as "positive law", it refers to the law in force in a particular country at a particular time. Positive law is also called "positive law", "law that is", "dogmatic law" or "de lege lata". When positive law is the law that is applied in a particular country at a particular time, it includes both the written sources of law, such as the constitution, laws, presidential decrees, international agreements, regulations, and the unwritten sources of law, namely customary rules.  BASIC CONCEPTS OF LAW In fact, based on Article 1 of the Turkish Civil Code, it can be said that judicial decisions (jurisprudence) and scientific opinions (scientific jurisprudence) are also included within the scope of this concept. "Natural law" is another concept used in the legal literature and, unlike positive law, it is not the law that is applied in a country or in a period, but the law that should be applied; the law that originates from nature, in short, the law that is thought to meet social needs in a way that best meets justice. In this respect, the concept of law is identical with the concept of "justice". This is why natural law is also called "natural law", "law as it should be" or "de lege ferenda".  BASIC CONCEPTS OF LAW Even though the concept of "procedural law" is sometimes used as a synonym for positive law, it would be more accurate to say that it is actually within and a part of it. This is because subject law, or legislation as it is more commonly known, refers to the rules of law that have been established in writing by an official authority. Legal regulations such as the Constitution, laws, presidential decrees and regulations are examples of subject law.  BASIC CONCEPTS OF LAW As can be understood from these different usages, it is very difficult to make a definition of law that everyone agrees on. Even if there is more or less consensus in determining the subject matter of law, since there is no unity in determining its purpose and source, it is possible to come across different definitions of law. If we make a formal definition based on its subject matter, law is a set of social rules that regulate the relations of the people who constitute social life with each other and whose compliance is supported by public power. The concept of rights has been defined in different ways within the framework of various theories and by the founders or defenders of these theories. Accordingly, a right is the authority granted to individuals by the legal order. According to another definition, the interests of individuals protected by the legal order are called rights.  BASIC CONCEPTS OF LAW However, it should be noted that the concepts of freedom (liberty) and rights are not synonymous. This is because freedom refers to the ability of a person to engage in a behavior or action without any external pressure, hindrance or interference. Rights, on the other hand, as we have just mentioned, include behaviors or actions that we can perform based on the authority granted by the rules of law. In short, rights are the embodied form of freedom. A right constitutes the primary element of a legal relationship. With a legal relationship, a person is given the possibility to act in a certain way, an authorization. Every right arises from a rule of law and every right has an owner. In law, the entity that has rights is called a person (individual). In modern societies, the relations of persons regulated by the rules of law are so diverse that it is necessary to classify the rights arising from these relations. This distinction is made according to certain criteria. In line with the distinction between private law and public law, rights are divided into "rights arising from public law", i.e. "public rights", and "rights arising from private law", i.e. private rights. BASIC CONCEPTS OF LAW Rights arising under public law are generally referred to as public rights. Public rights are divided into three categories according to the status of the relationship between the state and the individual: "negative status rights", "positive status rights" and "active status rights". Negative status rights define the boundaries of the private sphere of individuals that cannot be exceeded or touched by the state. For this reason, negative status rights are also called "preventive public rights", "protective public rights" or "personal public rights" Examples of negative status rights include inviolability of person and dwelling, right to privacy, freedom of religion and thought, freedom of settlement and movement, and property and inheritance rights.  BASIC CONCEPTS OF LAW Positive status rights, another sub-type of public rights, are rights related to the social and economic activities of individuals in social life as a result of the adoption of the principle of social state. In other words, these are public rights that allow individuals to request a behavior, service or assistance from the state. Such rights impose certain social and economic duties on the state. For this reason, positive status rights are also referred to as "social rights", "social and economic public rights" or "rights to demand".  BASIC CONCEPTS OF LAW The right to education and training, the right to use coasts, the right to work, the right to rest, the right to social security and the protection of historical, cultural and natural assets are all positive status rights. The last type of public rights are active status rights, which enable individuals to participate in state administration. The purpose of these rights is to participate in the political organization or administration of the state. This is because the basic principle that prevails in contemporary political societies today is democracy, i.e. self-government of the people, either directly or through representation. The terms "rights to participate" or "political public rights" are also used for active status rights. Examples of active status rights include Turkish citizenship, the right to vote and be elected, and the right to petition. Rights arising from the rules governing private law relations, i.e. the rules of private law, are called private rights. These rights are also called "civil rights". BASIC CONCEPTS OF LAW In terms of their qualifications, private rights are divided into two as "absolute rights" and "relative rights". Absolute rights are rights that can be asserted against everyone and grant the owner the broadest powers. While there may be absolute rights over tangible goods, there are also absolute rights over intangible goods and persons. Absolute rights over tangible goods are called "rights in rem". Real rights are divided into two categories: "limited real rights" and "unlimited real rights". The right of ownership, also called unlimited real right, authorizes the owner to use, benefit from and make all kinds of dispositions in relation to an object. BASIC CONCEPTS OF LAW When the subject of this right is a good that can be moved from one place to another, it is referred to as movable property, and when it is a good that cannot be moved from one place to another and is fixed in place, it is referred to as immovable property. Limited real rights, on the other hand, as the name suggests, are rights that do not grant full and unlimited powers to the owner, such as the right of ownership, and include limited powers. According to the nature of these powers, limited real rights are composed of three types: "easement rights", "immovable burden" and "pledge rights". Easement rights, which are among the limited real rights, consist of three types: real easement rights, personal easement rights and mixed easement rights. Resource rights can be shown as an example of easement rights in rem.  BASIC CONCEPTS OF LAW Having explained absolute rights over tangible goods in this way, let us explain absolute rights over intangible goods. What is meant by the concept of intangible property is the works that are the product of human intellect and will. As stated in Law No. 5846 on Intellectual and Artistic Works, the owner of a work has two types of rights on a work (work): material and immaterial. Works created as a result of a person's ideas and labor can be grouped under two headings: "intellectual works" and "industrial works". The rights on these works are also grouped as "intellectual rights" and "industrial rights".  BASIC CONCEPTS OF LAW Examples of rights over intangible goods include copyright, trademark right, patent right, industrial design and geographical indication. As we have mentioned above, absolute rights can also be manifested on individuals. Essentially, however, persons are the owners rather than the subjects of rights. BASIC CONCEPTS OF LAW In this respect, the absolute rights of a person over other persons are limited and are intended to protect the person over whom the right is established. Absolute rights over persons are divided into two categories: "absolute rights over the right holder's own person" and "absolute rights over other persons". Absolute rights over the right holder's own personality are referred to as "personality rights". Examples of absolute rights over other persons are "right of custody" and "right of guardianship". BASIC CONCEPTS OF LAW When rights are classified in terms of their qualities, another group consists of relative rights. Such rights, unlike absolute rights, cannot be asserted against everyone. They are rights that arise only when there is a legal relationship and can be asserted against a specific person or persons. BASIC CONCEPTS OF LAW The most typical example of relative rights is the right to receive arising from a debt relationship. However, there are also relative rights arising from family relations, inheritance relations and property law. In terms of their subject matter, private rights are divided into "property rights" and "personality rights". BASIC CONCEPTS OF LAW Assets (mamelek) refers to all rights and debts of individuals that can be measured in money. Thus, all rights that protect and subject the material interests of individuals are called property rights. It is also possible to define property rights as all rights that can be measured in money and can be converted into money. These rights may be inherited or transferred to other persons. Examples of property rights include property rights, credit rights and copyrights. BASIC CONCEPTS OF LAW Personality rights, which are the second type of private rights in terms of their subject matter, protect and address the moral interests of individuals. Personality rights, which are the second type of private rights in terms of their subject matter, protect and address the moral interests of individuals. In other words, it covers the rights of individuals that cannot be measured in money, cannot be converted into money and have moral value. Unlike property rights, personality rights are neither inheritable nor transferable to other persons. This is because such rights are personal, inalienable and inalienable. Rights to one's physical integrity, health, honor and dignity, secrets, name, voice and picture are examples of personality rights. BASIC CONCEPTS OF LAW Private rights are also divided into two in terms of their use. In this distinction made according to whether a right can be transferred or not, "transferable rights" are rights that can be transferred or passed on to other persons. Indeed, most of the property rights may be transferred to other persons through a legal transaction (e.g. a sale contract) or may be transferred to the heirs of the person through inheritance. The majority of asset rights such as property, receivables and pledges are transferable rights. On the other hand, usufruct, usufruct and maintenance rights, although they are among the property rights, cannot be transferred. "Inalienable rights", which are the second type of special rights in terms of their use, cannot be transferred to other persons through a legal transaction and do not pass to heirs through inheritance. BASIC CONCEPTS OF LAW For this reason, non-transferable rights are also referred to as "rights strictly attached to the person". Personality rights, usufruct, subsistence and alimony rights, the right to break an engagement, the right to file for divorce and the right to deny paternity are non- transferable rights. Finally, special rights in terms of their purpose; "ordinary rights" "constructive rights" are divided into two. BASIC CONCEPTS OF LAW While ordinary rights are called rights that do not give rise to novelty, constructive rights are called rights that give rise to novelty. Rights that do not aim to create a new legal situation are called ordinary rights. Indeed, the right of custody is such a right. Rights that aim to create a new legal situation, change the existing legal situation or eliminate the legal situation with a unilateral declaration of will by the right holder are called constructive rights. BASIC CONCEPTS OF LAW Rights that give rise to novelty are divided into various types, as can be understood from their definition. Rights that enable the establishment of a new legal situation are called "constructive rights of a constitutive nature". The declaration of acceptance, which is the second declaration made by the other party in accordance with this declaration against the first declaration made by one of the parties for the conclusion of the contract, constitutes an example of a constitutive constructive right, since it results in the conclusion of the contract. BASIC CONCEPTS OF LAW However, if the constructive right is used to make a change in the existing legal situation, it is called a "modifying constructive right". In defective goods, reporting a defect is the exercise of a constructive right of a modifying nature. The term "disruptive construction right" is used to express construction rights that completely eliminate an existing legal situation. The right of termination used in lease, ordinary company, service (employment) contracts is an example of this type in terms of terminating the contractual relationship  Duty - Debt - Obligation A duty is something that must be done or not done within the framework of certain rules. Duty derives from various rules, such as law, morality, religion, etc., so that it can be defined separately for each field. A duty arising from a rule of law is defined as something that must be done or not done within the framework of a rule of law. The concepts of right and duty are symmetrical concepts. This is because the concept of right is opposed to the concept of duty. The right of one party is the duty of the other party.  Duty - Debt - Obligation The concept of duty is mostly used in public law. In private law, the concept of "obligation" is often used instead of the concept of duty. The concept of debt has two meanings, one narrow and one broad. "Debt in the narrow sense" is the obligation of one person to perform an act (behavior) to another person. The concept of "debt in the broad sense" means a debt relationship that gives rise to certain debts and claims. The subject matter of the obligation is "performance". Duty - Debt - Obligation An act may sometimes be related to the doing of something, sometimes to the giving of something, and sometimes not to the doing of something. Performance is one of the elements of a debt relationship. The other elements are the debtor and the creditor. The person who is obliged to fulfill a performance is called a debtor, while the person who has the right to demand the fulfillment of the performance is called a creditor. If the debtor fails to fulfill the obligation, the creditor has the right to enforce the performance of the obligation by state force. This situation is called "liability of the debtor". In the unit where the types of contracts in tourism law will be explained, these concepts will be emphasized separately. Duty - Debt - Obligation Obligation (obligation, burden, burden, Obliegenheiten); unlike the concepts of duty and debt, it is a rule of behavior that the person who benefits from it cannot demand the performance of this behavior and is not entitled to any compensation in case it is not fulfilled on time. An example of a situation where the other party cannot demand the performance of the obligation, whereas the party who fails to fulfill the obligation imposed on him will lose some of his rights is the buyer's inspection and notice obligation in the sale contract.  Legal Event - Legal Action - Legal Transaction - Contract We encounter many situations and events in daily life. However, it is necessary to identify which of these events are relevant to the law. This is because events that do not concern the law do not constitute its subject matter.  Legal Event - Legal Action - Legal Transaction - Contract Events that occur in daily life can be explained under two headings: "natural events" (events in general) and "legal events". Natural events include all changes in nature. The rising and setting of the sun, the growth of trees, the flight of birds, snowfall, the reproduction of animals, earthquakes, floods, people being born, dying, working, traveling, fighting, etc. are generally considered within the concept of event.  Legal Event - Legal Action - Legal Transaction - Contract However, many of these events do not have legal consequences. This is because legal events are events to which the legal order attaches legal consequences.  Legal Event - Legal Action - Legal Transaction - Contract Therefore, while the setting of the sun or the flight of birds are natural events, the birth, death, work, travel, travel, fighting, earthquakes, floods, etc. are legal events because the legal order attaches a legal consequence to them. As can be seen, legal events are divided into "legal events caused by natural events" (such as illness, death, earthquake, flood) and "legal events caused by human behavior" (such as injury, manslaughter, theft). Legal Event - Legal Action - Legal Transaction - Contract Legal events that occur as a result of human behavior consist of "legal acts" (legal acts) and "legal transactions". Actions resulting from human will or action are called legal actions or legal acts. In legal actions, the act is voluntary, but the result may not always be lawful. For this reason, legal acts are divided into "lawful acts" and "unlawful acts" in terms of their results. Legal Event - Legal Action - Legal Transaction - Contract Lawful acts are those that are within the legal order, do not contradict it, and are in accordance with the rules of law. It is divided into three categories: "expression of opinion", "expression of emotion" and "expression of will". Unlawful acts are actions that are contrary to the legal order and contrary to the rules of law. In private law, torts and breach of obligation constitute unlawful acts, while in criminal law, which is a sub-branch of public law, such acts are generally called "crimes". Legal Event - Legal Action - Legal Transaction - Contract Statements of will are the most common types of lawful acts in daily life. Expressions of will are divided into three categories: "legal acts", "similar legal acts" and "material acts". Among these types, it is particularly useful to focus on legal transactions. This is because a legal transaction is a declaration of will to produce legal results. Contracts are a type of legal transaction. Legal Event - Legal Action - Legal Transaction - Contract Legal transactions are classified as "unilateral legal transactions" and "bilateral or multilateral legal transactions" in terms of the number of parties. Contracts, which are a type of bilateral legal transactions, are established as a result of mutual and appropriate declarations of will of the parties. The first of these statements, which has the purpose of establishing the contract, is called an offer, and the one that follows it and results in the conclusion of the contract is called an acceptance. Contracts are, as a rule, bilateral. Legal Event - Legal Action - Legal Transaction - Contract In some cases, however, there are contracts that involve more than two parties. Contracts are of two types: "contracts imposing obligations on one party" and "contracts imposing obligations on two parties" in terms of whether they create mutual obligations for the parties. If a contract obliges only one of the parties and does not create any primary obligation for the other party, such a contract is called a single-party contract. Legal Event - Legal Action - Legal Transaction - Contract However, contracts usually impose obligations on two parties. In other words, it creates a primary obligation for both parties. A contract of promise of donation is a contract that imposes an obligation on one party. On the other hand, employment, sale, lease and accommodation contracts are contracts that impose obligations on both parties.