Introduction To Law I-1 (FALL 2024) PDF

Introduction to law FALL 2024 rules of social order rules of etiquette rules of religion rules of custom rules of morality rules of law  The difference between rules of law and other rules of social order is the power of sanction and the fact that this powe...

Introduction to law FALL 2024 rules of social order rules of etiquette rules of religion rules of custom rules of morality rules of law  The difference between rules of law and other rules of social order is the power of sanction and the fact that this power of sanction is in the hands of the state. SIGNIFICANT FUNCTIONS OF LAW Preserving order Achieving justice Protecting rights Imposing duties Promoting freedom Upholding the rule of law Protecting security Resolving disputes Some Tasks of Modern Legal System Offenders Should be punished Torts Should be compensated Agreements Should be enforced Law Law is the set of rules that ensure the protection of social order. Law regulates the relations between the state and the individual, inbetween the individuals and states themselves. Sources of Law Written Resources (Legislation) Manners and Customs (Customs Law) Judicial Decisions Doctrine  Sources of law «Sources of law» refers to the collection of contemporary legal rules enacted by States’ competent body «the positive law/enacted law/ legislation» on which a judge bases a decision. «Legislation» is the most important (primary) source of law. «customary law» rules are also a source; «case law or judicial precedents» and «books of authority or doctrine» are subsidiary sources.  Sources of law Subsidiary Sources Primary Sources 1. Legislation 1. Case Law (written sources) 2. Doctrine 2. Customary Law (unwritten sources)  Law enforcement and resources THE RULE IN CIVIL CODE Turkish Civil Code Article 1 - The law is applied in all matters that it refers to with its word and essence. If there is no applicable provision in the law, the judge decides according to the customary law, otherwise whatever rule he would have made if he was a legislator. The judge makes use of scientific opinions and judicial decisions while making a decision. Case Law The judge can also benefit from the decisions made by other courts on that matter. Decisions made by other courts are not binding for another judge, they only benefit BUT the decisions of higher courts to consolidate the case law of the Supreme Court are binding. Case law "Judicial Decisions" is a branch of law that comes from the decisions made by the courts. "Case law" is a court decision taken as an example by other courts. Case law is not binding in Turkish Law. However, judges take into account the decision of a higher court while making their decision and decide accordingly. Doctrine "Doctrine" is the opinions, thoughts and convictions put forward by legal scholars on controversial legal issues. It is not binding. If the judge wishes, he can benefit from them. The Hierarchy of Enacted Laws The Constitution Codes (Acts) International Treaties Presidential Decrees: In Presidential Government System, which was adopted on 9 July 2018 in Turkey, the President is entitled to issue Presidential Decrees. By –Laws Legislative Power Grand National Assembly has sole authority to enact laws. [Turkih Constitution Art. 7] ARTICLE 7 ‘Legislative Power’- Legislative power is vested in the Grand National Assembly of Turkey on behalf of Turkish Nation. This power shall NOT BE delegated. Constitution Constitution occupies the first place in the hierarchy of enacted laws and contains the most general and abstract legal rules of the country and it is the supreme law of the country.« laws SHALL NOT be in conflict with the Constitution.» [Art. 11 of the Constitution] Article 11 states «Provisions of Constitution shall be FUNDAMENTAL legal principles binding the legislative, executive and judicial organs, administrative authorities and individuals»  Kamu Hukuku/ Public Law Uluslararası (Kamu) Hukuk/(Public) International Law Anayasa Hukuku/Constitutional Law İdare Hukuku/Administrative Law İdari yargı/ Administrative Judicial Procedure Act «Code No.2577» Vergi Hukuku/Tax Law Ceza Hukuku/Criminal Law « Turkish Penal Code- Code No.5237» Ceza Usul Hukuku/ «Code of Penal Procedure – Code No. 5271» Özel Hukuk/PRIVATE LAW Medeni Hukuk/Civil Law (Kişiler Hukuku/Law of Persons, Aile Hukuku/Family Law, Miras Hukuku/Law of Succession, Eşya Hukuku/Law of Property) Borçlar Hukuku/Law of Obligations Ticaret Hukuku/Commercial Law (Ticari İşletme Hukuku / Law of Commercial Enterprises, Şirketler Hukuku/Company Law, Kıymetli Evrak Hukuku/Law of Commercial Papers, Sigorta Hukuku/Insurance Law, Deniz Ticaret Hukuku/Maritime Law) Devletler Özel Hukuku/Private International Law Vatandaşlık Hukuku/Nationality Law Yabancılar Hukuku/Legal Status of Aliens İş Hukuku/ Labor Law Medeni Usul Hukuku/Law of Civil Procedure İcra ve İflas Hukuku/Law of Execution and Bankruptcy Fikri Mülkiyet Hukuku/Intellectual Property Law (Patent Law, Trademarks Law, Copyright Law) COMPULSORY LEGAL RULES No one shall be forced to work. Forced labour is prohibited. (art.18/1 of The Constitution of Republic of Turkey) Personality of human being starts at the moment of birth ( it must be competely seperated from its mother’s body and must be alive ) and ends with the death. (Art.28/1 of Turkish Civil Code) Majority begins with the completion of eighteen years of age. (Art.11/1 of Turkish Civil Code) Performance of the obligation must be made and accepted during normal business hours on the date stipulated.(Art.94/ of the Turkish Code of Obligations) DESCRIPTIVE LEGAL RULES Domicile is the place where a person resides with the intention of remaining here.(Art.19/1 of Turkish Civil Code) Merchant is the person operating a commercial enterprise even partially in his/her own name. (Art.12/1 of Turkish Commercial Code) Worker is a real person working under employment contract ( Art 2 of the Labour Law).  COMPLEMENTARY LEGAL RULES Where an obligation involves the payment of interest and the annual rate is not set in the contract , the rate of interest is determined by the rules of the legislation in force by the date in which the obligation to pay the interest occurs. Art,88/1 of Turkish Code of Obligations) Where no time of performance is stated in the contract or evident from the nature of the legal relationship, the obligation may be discharged or called in immediately. (Art.90 of Turkish Code of Obligations). The place of performance is determined by the intention of the parties as stated expressly or evident from the circumstances. Except where otherwise stipulated, the following principles apply: Pecuniary debts must be paid at the place where the creditor is resident at the time of performance, Where a specific object is owed, it must be delivered at the place where it was located when the contract was entered into, Other obligations must be discharged at the place where the obligor was resident at the time they arose. (Art.89 of Turkish Code of Obligations). INTERPRETATIVE LEGAL RULES A time limit expressed as the beginning or end of a month means the first or last day of the month respectively. A time limit expressed as the middle of the month means the fifteenth day of that month. If only the month is expressed for the time of performance without indicating a day, it means the last day of that month. ( Turkish Code of Obligations, Art.91) constıtutıon Supremacy and binding force of the Constitution (art.11) The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals. Laws shall not be contrary to the Constitution. Amending the constitution Amendment to the Constitution shall be proposed in writing by at least one-third of the total number of members of the Grand National Assembly of Turkey. Bills to amend the Constitution shall be debated twice in the Plenary. The adoption of a bill for an amendment shall require a three-fifths majority of the total number of members of the Assembly by secret ballot. The consideration and adoption of bills for the amendments to the Constitution shall be subject to the provisions governing the consideration and adoption of laws, with the exception of the conditions set forth in this Article. The President of the Republic may send back the laws on the amendments to the Constitution to the Grand National Assembly of Turkey for reconsideration. Amendıng the constıtutıon If the Assembly readopts, by a two-thirds majority of the total number of members, the law sent back by the President of the Republic without any amendment, the President of the Republic may submit the law to referendum. A law on the Constitutional amendment adopted by a twothirds majority of the total number of members of the Grand National Assembly of Turkey directly or upon the sending back of the law by the President of the Republic or its articles deemed necessary may be submitted to a referendum by the President of the Republic. A law on the amendment to the Constitution or the related articles that are not submitted to referendum shall be published in the Official Gazette. Amendıng the constıtutıon Entry into force of the laws on the amendment to the Constitution submitted to referendum shall require the affirmative vote of more than half of the valid votes cast. The Grand National Assembly of Turkey, in adopting the law on the Constitutional amendment shall also decide on which provisions shall be submitted to referendum together and which shall be submitted individually, in case the law is submitted to referendum. Every measure including fines shall be taken by law to secure participation in referenda, general elections, by- elections and local elections. Laws and TGNA Legislative power is vested in the Grand National Assembly of Turkey on behalf of Turkish Nation. This power shall not be delegated. (Art.7) The duties and powers of the Grand National Assembly of Turkey are to enact, amend, and repeal laws; to debate and adopt the bills of budget and final accounts to decide to issue currency and declare war; to approve the ratification of international treaties, to decide with the majority of three-fifths of the Grand National Assembly of Turkey to proclaim amnesty and pardon; and to exercise the powers and carry out the duties envisaged in the other articles of the Constitution. (Art.87) LAWS Deputies are empowered to introduce bills. The procedure and principles regarding the deliberation of private members’ bills in the Grand National Assembly of Turkey shall be regulated by the Rules of Procedure. (Art.88) President promulgates laws. (Art.104) Laws President returns laws for reconsideration to the Grand National Assembly of Turkey. (Art.104) If the Grand National Assembly of Turkey adopts the law sent back for reconsideration with the absolute majority of total number of members without any amendment, the law shall be promulgated by the President of the Republic; If the Assembly makes a new amendment to the law, the President of the Republic may send the amended law back for reconsideration. (Art.89/3 ) Presidential decrees The President may issue presidential decrees on matters relating to the executive power. The fundamental rights, individual rights and duties included in the first and second chapters, and the political rights and duties listed in the fourth chapter of the second part of the Constitution, shall not be regulated by presidential decrees. No presidential decrees shall be granted on matters to be regulated specifically by law embodied in the Constitution. No presidential decrees shall be granted on matters explicitly regulated by law. ( Art.104 of Constitution of Republic of Turkey) PRESIDENTAL DECREES In case of a conflict between presidential decrees and the laws due to differences in provisions on the same matter, the provisions of law shall prevail. In case the Grand National Assembly of Turkey introduces a law on the same matter, the presidential decree shall become null and void. Decrees shall come into force on the day of their publication in the Official Gazette unless a date later than publication is determined Court Decisions Precedent: A judgement or decision of a court of law cited as authority for deciding a similar set of facts. In Continental European Countries, judicial precedents are not, in theory, regarded as a source of law, due to the view that legislature is the sole source of the new law and the only lawmaker as such. Prior decisions are not binding but in practice in the Continent it is generally accepted that to secure certainty and uniformity among court decisions, the prior decisions of superior cours especially supreme court, are de facto to be binding as statutory law. Precedents in Türkiye Certain precedents are followed by the courts. The decisions of the Constitional Court, which are officially published are binding. Inferior civil and criminal courts are bound by some decisions of the Court of Cassation, and the Court of Cassation is bound some of its decisions. In administrative cases, the decisions of the Council of State are also binding for inferior administrative courts including the Court of Accounts. High Courts in Türkiye A. Constitutional Court B. Cout of Cassation C. Council of State D. Court of Accounts E. Court of Conflicts A. Constitutional Court Constitutional Court Consists of 15 judges 1. Action for the Annulment: Abstract review of the norms 2. Claim of unconstitutionality before other courts: Concrete review of norms 3. Individual right to lodge a constitutional complaint 1. Action for the Annulment: Abstract review of the norms a. Constitutional Court has inter alia the tasks of reviewing the constitutionality of certain legal norms in terms of both form and substance and decide on An Action for the Annulment of statutes, presidential decrees and the Rules of the Procedure of the TGNA may be initiated by constitutional complaints of certain persons. (The president, two political groups having the highest number of members in TGNA, one fifth of total number of the members of the TGNA)  The President of the Republic, the groups of two political parties which have the highest number of members in the Grand National Assembly of Turkey and a minimum of one-fifth of the total number of all members shall have the right to apply for annulment action directly to the Constitutional Court, based on the assertion of the unconstitutionality, in form and in substance, of laws, of presidential decrees, Rules of Procedure of the Grand National Assembly of Turkey or of certain articles or provisions thereof. (Art.150) The right to apply for annulment directly to the Constitutional Court shall lapse sixty days after publication in the Official Gazette of the contested law, the presidential decree or the Rules of Procedure  2. Claim of unconstitutionality before other courts: Concrete review of norms If a court hearing a case finds that the law or presidential decree to be applied is unconstitutional, or if convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it shall postpone the consideration of the case until the Constitutional Court decides on the issue. If the trial court is not convinced of the seriousness of the claim of unconstitutionality, such a claim, together with the court judgment, shall be decided upon by the competent authority of appeal. The Constitutional Court shall decide on the matter and declare its judgment within five months of receiving the contention. If no decision is reached within this period, the trial court shall conclude the case under legal provisions in force. However, if the trial court receives the decision of the Constitutional Court until the judgment on the merits of the case is final, the trial court is obliged to comply with it. No claim of unconstitutionality shall be made about the same legal provision until ten years elapse after publication in the Official Gazette of the decision of the Constitutional Court dismissing the application on its merits. (Art.152)  Claim of unconstitutionality before other courts If a court hearing a case finds that the law or presidential decree to be applied is unconstitutional, or if convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties, it shall postpone the consideration of the case until the Constitutional Court decides on the issue. If the trial court is not convinced of the seriousness of the claim of unconstitutionality, such a claim, together with the court judgment, shall be decided upon by the competent authority of appeal. The Constitutional Court shall decide on the matter and declare its judgment within five months of receiving the contention. If no decision is reached within this period, the trial court shall conclude the case under legal provisions in force. However, if the trial court receives the decision of the Constitutional Court until the judgment on the merits of the case is final, the trial court is obliged to comply with it. No claim of unconstitutionality shall be made with regard to the same legal provision until ten years elapse after publication in the Official Gazette of the decision of the Constitutional Court dismissing the application on its merits. (Art.152) DECISIONS OF CONSTITUTIONAL COURT The decisions of the Constitutional Court are final. Decisions of annulment shall not be made public without a written justification. In the course of annulling the whole, or a provision, of laws or presidential decrees, the Constitutional Court shall not act as a lawmaker and pass judgment leading to new implementation. Laws, presidential decrees, or the Rules of Procedure of the Grand National Assembly of Turkey or provisions thereof, shall cease to have effect from the date of publication in the Official Gazette of the annulment decision. Where necessary, the Constitutional Court may also decide on the date on which the annulment decision shall come into effect. That duration shall not be more than one year from the date of publication of the decision in the Official Gazette. DECISIONS OF CONSTITUTIONAL COURT In the event of the postponement of the date on which an annulment decision is to come into effect, the Grand National Assembly of Turkey shall debate and decide with priority on the private members’ bill, designed to fill the legal void arising from the annulment decision. Annulment decisions cannot be applied retroactively. Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.  3. Individual right to lodge a constitutional complaint Anyone can lodge a constitutional complaint claiming that one of his/her fundamental rights has been violated, upon exhausting all ordinary legal remedies. INTERNATIONAL TREATIES The ratification of treaties concluded with foreign states and international organizations on behalf of the Republic of Turkey shall be subject to adoption by the Grand National Assembly of Turkey by a law approving the ratification. Agreements regulating economic, commercial or technical relations, and covering a period of no more than one year, may be put into effect through promulgation, provided they do not entail any financial commitment by the State, and provided they do not interfere with the status of individuals or with the property rights of Turks abroad. In such cases, these agreements shall be brought to the knowledge of the Grand National Assembly of Turkey within two months of their promulgation. INTERNATIONAL TREATIES Implementation agreements based on an international treaty, and economic, commercial, technical, or administrative agreements, which are concluded depending on the authorization as stated in the law, shall not require approval of the Grand National Assembly of Turkey. However, economic, commercial agreements or agreements relating to the rights of individuals concluded under the provision of this paragraph shall not be put into effect unless promulgated. Agreements resulting in amendments to Turkish laws shall be subject to the provisions of the first paragraph. «International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional.» In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. BY-LAWS The President of the Republic, (Art.104) the ministries, and public corporate bodies may issue by-laws in order to ensure the implementation of laws and presidential decrees relating to their jurisdiction, as long as they are not contrary to these laws and presidential decrees. The law shall designate which by-laws are to be published in the Official Gazette. (Art 124 of Constitution of Republic of Turkey) (Art.124) By-laws shall come into force on the day of their publication in the Official Gazette unless a date later than publication is determined (Art.104) Customary Law Customary Law ( Common Law-Örf ve Adet Hukuku ) In primitive communities customary observances supported by supernatural sanctions played an important role in regulating social life. (i.e.fishing, hunting,family relations) With the evolution of primitive societies into modern societies the importance of custom as a source of law has diminshed. In the modern world, the legislature may, by statute, deprive a customary ruleof its lefal status making it a subordinate source of law. Custom constituted the generally and strictly observed course of conduct of the society. Customary Law For a custom to have legal validity in thi Turkish Civil Law system the following requirements must be satifsfied. Antiquity Continuity Popular Belief in the Rightness of the Custom State Sanction Agreement with Statutory Law CUSTOMARY LAW Antiquity As a rule, a custom must have existed for a long time and no living person should know the beginning of it. For example, it may not be possible to meet the condititon of antiquity for a coustom related to transactions concerning air navigation. Continuity A custom must be continuously observed. If it is abandoned or its practice is interrupted in favour custom, the requirement of continuity is not realized. The condititon of continuity is the material and objective factor applied to prove the validity of customary observance. CUSTOMARY LAW Popular Belief in the Rightness of the Custom Custom must concsiously or unconsciously be considered right by the members of society. There should be a belief among the members of society about the rightness and binding force of custom. If a custom is maintained only by force, it cannot be considered as valid. CUSTOMARY LAW State Sanction Until the courts apply customs, giving them the sanction of state authority,the are not law. Current Turkish statutes clearly state when customary rules are to be used by courts. (Art.1 of the Turkish Civil Code) The law must be applied in all cases which come within the letter of spirit of any of its provisions. Where no provisions are applicable, the judge should decide according to existing customary law. CUSTOMARY LAW Art 686 of the Turkish Civil Code states that the term non-essential parts of a property is to be understood according to the local customary practice. Art 357 of the Turkish Code of Obligations, if otherwise agreed by the agreement , agricultural produce is to be divided between the tenant and landlord according to local customs. Art 1 of the Turkish Commercial Code provides that in the instances where there is no provision of written law of commercial nature applicable to the case at hand, the judge should decide in accordance with commercial custom. CUSTOMARY LAW Agreement with Satutory Law A custom contrary to statutory law will not be legally valid. Judges will usually consult experts to ascertain the content of customary rules. RIGHTS Right is the benefit that we have the power to demand protection of law. Right is the benefit that is legally protected and that provides its owner with the power to demand their protection. Right constitutes the primary element of legal relationship. All human beings are born free and equal in dignity and rights.(Art.1 of Universal Declaration of Human Rights.) Everyone has the right to recognition every where as a person before law. (Art.6 of Universal Declaration of Human Rights.) PUBLIC RIGHTS-PRIVATE RIGHTS Public rights are the rights that arise from the rules regulating the relationships of persons with State or society and that fall into area of Public Law. (Kamu Hukuku) Public Law deals with th relationship and the resolution of conflicts between individuals and the State, with governmental regulation of individual and corporate activities and with the organization and limitations of State power. Private rights are the rights from the rules regulating personal and economic relations among persons. Private law deals with relationships and resolution of conflicts among private individuals including legal persons. PERSONS Every person can be the subject of rights under law, and everyone is entitled to the rights recognized by law. Every person can be subject of rights within the limits imposed by law, they have equal capacity to possess rights and duties (Art.8 of Turkish Civil Code). While persons can be subject of rights under the Civil code, animals and things can only be objects over which rights are exercised. Persons are subject to law. The law confers rights and imposes certain duties on them. The term «person « is not limited to human beings, though it also refers to «legal persons». PERSONS AND LEGAL PERSONALITY Real personality begins at birth and ends at death. However even before birth a human being is not without legal recognition. Between conception and birth the child is deemed to have legal capacity; conditional on his being born alive. (Art.28/II.Turkish Civil Code.) Legal persons are entities created by the function of law, and not biology. For example, an association, a foundation, a corporation are all legal persons and thus subjects to private law entitled to enjoy legal rights, but also possesing duties as well. Legal persons are legally capable of having rights and incurring obligations except for those that are inseperably interwined with human nature such as sex, age or family relationship. (Art.48 / Turkish Civil Code.) Real persons-personalıty Beginning and ending of personality Birth and death Personality begins at the very moment the child is born and ends by death. A child is born completely seperated from its mother’s body and is then alive, if only for a few moments. The child may be subject of rights after it is conceived, provided that it is born alive. (Art.28/2) of Civil Code. In the Law of inheritance, a child conceived,but not yet born, may be a legal heir if it is born alive ( Art.582, 643,644)of Civil Code. Real persons -PERSONALITY The personality of human being ends at death. A dead person cannot be the subject of rights. Upon a person’s death his estate passes to his successors. By means of a last will made during his life a person, may dispose of his property, and such a will becomes effective at his/her death. Normally the death should be determined officially with the document issued by the state authorities. Real persons-personality If a person disappears under the circumstances where there is a definite indication of a death even if the body is not found, then he/she is regarded as deceased. (Ölüm Karinesi/Presumption of death) A missing person may be declared dead by a court after the expiration of a certain period of time (5 years), if no news has been received from him/her during such time (Gaiplik kararı/presumption of absence). A person may be declared dead if he/she has been lost in an accident ( 1 year)or circumstances in which lives may be lost, such as a ship collision and if no news has been received from him since then. (Civil Code Art.32- 35) In both cases, an application must be made to the court. If several persons have died or been declared dead and it cannot be proved that one has lived longer than another; it is presumed that they all died at the same time (Civil Code Art.29.) PERSONS AS SUBJECTS OF RIGHTS All real persons are subject to rights. Everyone possesses inherent fundamental rights and freedoms, which are inviolable and inalienable. The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family, and other individuals. (Constitution Art.12 ) Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence. ( Constitution Art.17.) PERSONS AS SUBJECT OF RIGHTS No person may waive his/her rights and capacity to act freely even if it is in the least degree. Neither a person may waive his/her freedom nor any one may impose restrictions on a person contrary to the laws and ethics. The, extraction, vaccination and transfer of biological substances of human origin is subject to the written consent of the concerned body. However, no claim may be raised against a person who undertakes to give biological substance persuading him to fulfil his/her obligations; also, no claim may be raised for compensation of physical and moral damages. (Art.23, Civil Code) PERSONS AS A SUBJECT OF RIGHTS The person subject to assault on his/her personal rights may claim protection from the judge against the individuals who made the assault. Each assault against personal rights is considered contrary to the laws unless the assent of the person whose personal right is damaged is based on any one of the reasons related to private or public interest and use of authorisation conferred upon by the laws. (Art.24/Civil Code) -The claimant may demand from the judge to take an action for prevention of assault, elimination of such threat and determination of unlawful consequences of the assault even though it is discontinued. (Art.25 Civil Code Right of the claimant to demand compensation for physical and moral damages and to request the transfer of gains incurred from unlawful assault in his favour under the provisions stipulating performance of business without requirement of proxy, is hereby reserved. CAPACITY TO ACT Capacity to act Capacity to enter legal transactions The ability to enter into legally valid transactions (Civil Code Art.9) The legal validity of a transaction, for example of a contract, depends on the capacity of the person that is party to the transaction. The same is true for the validity of unilateral declaration, such as sending a notice in case to terminate a leasing agreement. Capacity to be liable for wrongs or torts. A person may be legally liable if he damages the body, person, or property of another.  FULL CAPACITY Those who are of age, that is to say, have reached their majority, are able to make mature or fair judgements and not under guardianship, are fully capable of entering into legal transactions. (Civil Code Art.10) Such persons will be bound by the contracts they sign, and they will be liable for tort if they give damage to somebody else or his property. FULL CAPACITY AGE Those who are of age that is to say have reached their majority. In order to have full capacity, a person must have his or her majority. A person ceases to be a minör when he/she is 18 years old. In exceptional cases persons may acquire majority upon marriage or court decision at less than 18. Marriage confers majority. (Civil code Art.11/2) The marriage age is 17 both for girls and boys. Under extraordinary conditions a 16 year old boy or girl may marry with the permission of the court (Civil Code Art.124/2) ; they would thus acquire majority. FULL CAPACITY AGE : A minor who has completed his 15 th year, may upon his application and with the consent of his parents, be declared by the court to be full age. (Civil Code Art.12) This may be useful when a minor is working and earning his own living, so as to permit the minor and third persons to enter into valid transactions. CAPACITY TO MAKE FAIR JUDGEMENTS Persons who are not able to act reasonably because of minority, mental sickness, mental weakness,drunkness or causes similar to these do not have the ability to make fair judgements. To act in a fair manner or reasonably is a vague concept. It changes from time to time and from a person to person. Full incapacıty Incapable persons are generally not held liable for damages to others. However, in certain cases, equity may require that an incapable person be responsible for the results of his/her acts.( Art.65 , Code of Obligations.) On the ground of equity principle, the court may decide that a wealthy but incapable person, who wrongfully caused damage to a poor person, must compensate the damage. A person who temporarily loses the ability to make fair judgements, he-she will be held liable for damage has been inccurred in the course of event. But if he/she proves that he/she has no fault to lose ability to make fair judgements, will discharge from liability. LIMITED (In)CAPACITY Minors who are mature : Maturity, that is ability to make fair judgements, is generally associated with majority. In some cases a person who reached his majority may not be mature, and A minor may be able to make fair judgements. Persons who have been interdicted (put under guardianship) because of extravagance, habitual drunkenness, have limited capacity if they are able to make fair judgements. LIMITED (In)CAPACITY Persons with limited incapacity may enter into certain transactions with the approval of their statutory representative (Civil Code Art 451-16/1) Transactions without the consent of the statutory representative are voidable by the incapable person. The other party is bound by the transaction except that he/she may ask the statutory representative to give his approval within a certain period of time or may ask the court to fix a time.If approval is not given within such time, the transaction ceases to be binding on such other party. (Civil Code.Art.451/II) A transaction may also be approved by the minör after he/she comes of age.  Place of residence (Domicile) 1. Definition Article 19- A settlement is a place where a person lives with the intention of staying permanently. A person cannot have more than one place of residence at the same time. This rule does not apply to commercial and industrial organizations. 2. Changing the place of residence Article 20- Changing a settlement is subject to the acquisition of a new one. The current place of residence of a person whose previous place of residence is unknown or who has left his place of residence in a foreign country but has not yet acquired a place of residence in Turkey is considered as his place of residence. 3. Legal place of residence Article 21- The place of residence of the child under custody is determined by his/her parents; If the parents do not have a common place of residence, it is the place of residence of the mother or father to whom the child is left. In other cases, the child's place of residence is considered his place of residence. The place of residence of persons under guardianship is the place where the guardianship authority to which they are affiliated is located. 4. Presence in institutions Article 22- Staying in a place to attend an educational institution or being placed in an education, health, care or penal institution does not result in obtaining a new place of residence. Protection of personality I. Against abandonment and over-restriction Article 23- No one can give up their rights and capacity to act, even partially. No one can give up their freedom or limit them contrary to law or morality. Receiving, inoculating and transporting biological materials of human origin is possible upon written consent. However, the person who has undertaken the obligation to provide biological material cannot be asked to fulfill his obligation; No request for material or moral compensation can be made. II. Against attack 1. Principle Article 24- A person whose personal rights have been unlawfully attacked may request protection from the judge against those who attack. Unless the consent of the person whose personal rights are violated is justified by one of the reasons for a higher private or public benefit or the exercise of the authority granted by law, every attack on personal rights is unlawful. 2. Cases Article 25- The plaintiff may ask the judge to prevent the danger of attack, to end the ongoing attack, and to determine the unlawfulness of the attack, whose effects continue even if it has ended. The plaintiff may also request that the correction or decision be notified to third parties or published. The plaintiff reserves the right to request material and moral compensation and to request that the earnings obtained due to the unlawful attack be given to him in accordance with the provisions of working without power of attorney. The claim for non-pecuniary damage cannot be transferred unless it is accepted by the other party; It does not pass to the heirs unless claimed by the testator. The plaintiff may file a lawsuit in the court of his own place of residence or the court of the defendant's place of residence for the protection of his personal rights. RIGHT ON NAME 1. Protection of name Article 26- The person whose name is in dispute may file a lawsuit to determine his rights. The person whose name is used unfairly must stop this; If the wrongful user is at fault, he may also request compensation for his material damage and payment of non-pecuniary damages if the nature of the injustice he suffers requires. 2. Changing the name Article 27- Changing the name can only be requested from the judge based on justified reasons. The change of name is recorded and announced in the civil registry. Changing the name does not change the personal situation. Acquiring Turkish citizenship Ways of Acquiring Turkish Citizenship: (Law on Turkish Nationality) Article 5- (1) Turkish citizenship is acquired by birth or after birth. Citizenship acquired by birth Article 6- (1) Turkish citizenship by birth can be acquired by place of birth and/or descent. Citizenship by birth is acquired at the moment of birth. Descent (Kinship Tie) Article 7- (1) A child born to a married Turkish father or mother, whether in Turkey or abroad, is Turkish citizen. (2) A child born to a Turkish mother and alien father out of marriage is Turkish citizen. (3) A child born of a Turkish father and an alien mother out of marriage acquires Turkish citizenship if the principles and procedures regarding the determination of descent are met. Place of Birth Article 8- (1) A child born in Turkey but acquiring no citizenship from his/her alien mother or alien father acquires Turkish citizenship by birth. (2) A child found in Turkey is deemed to have been born in Turkey unless proven otherwise.  A foreigner acquires Turkish nationality normally by means of naturalization. Persons who have lived in Turkey more than 5 years and have all the qualifications required by the law may apply to the authorized office (provinces or consuls outside of Turkey), and the Ministry of Interior grants Turkish nationality. PROTECTION OF PERSONALITY Bodily integrity, health, freedom, name, reputation and right to privacy are involved in protection of personality. A person is legally protected, against; insults disclosure of certain secrets publication of personal pictures Also; promises not to marry in ones life time or life time employment agreements are prohibited. PROTECTION OF PERSONALITY AGAINST OTHERS According to the Penal Code Person intentionally giving harm or pain to another person or injure the of health or mental power of others, is sentenced to imprisonment from one year to three years. Felonies against liberty, libel (written form) and slander (orally) are prohibited. Any atteck against personality right is unlawfull, unless there is aground for justification. (Attecked persons permission, private or public interest, allowance by statute, self defence) Attacked person may demand from the court: 1. Prohibition of the attack (önleme) 2. Stopping of the attack (durdurma/son verme) 3. Declaration of unlawfullness (when the effects of the attack continue) (tespit) 4. Compensation Damaging acts against honor and reputation by way of accusations, libels, slanders, wrong information or improper critisism may also be prevented or stopped within Civil Code.  Disclosing secrets, (private letters, phone calls, publishing pictures) are also acts against personality. Legal exception: If the public interest to be informed prevails over the personal rights of the individual, the publication of news about well known persons would not be considered unlawful. The right of a person to his name: Article 26- The person whose name is in dispute may file a lawsuit to determine his rights. The person whose name is used unfairly must stop this; If the wrongful user is at fault, he may also request compensation for his material damage and payment of non-pecuniary damages if the nature of the injustice he suffers requires. Threating the economic existence of a person and unfair competition is also prohibited within the protection of personality rights. Law on the Protection of Personal Data prohibits the processing of personal data without explicit consent. Monetary Remedies Compensation of Material Damages: If a neglicant or an intentional act against the right to personality causes pecuniary losses, must be compensated Compensation of Moral/immaterial Damages: If the attack causes pain and suffering the judge may decide to additional compensation. Sometimes an apolgy and its publication in news paper may also be decided (instead or in addition to moral compansation) Disgorgement of Profits: Even if the victim has not suffered material damage, may claim profits gained by the attacker. (ex. Publishing diaries without consent) PROTECTION OF PERSONALITY AGAINST ONESELF Against waiver (feragat) and extreme restrictions ARTICLE 23 Civil Code- No person may waive his/her rights and capacity to act freely even if it is in the least degree. Neither a person may waive his/her freedom, nor anyone may impose restrictions on a person contrary to the laws and ethics. Ex. The provisions of Engagement ARTICLE 119- Engagement does not give the right to sue to force to marry. The withdrawal compensation or punishment requirement for the avoidance of the marriage cannot be sued, but the payments made cannot be requested. Non-compete clauses LEGAL ENTITIES (PERSONS) The term persons includes human beings (real persons) and legal entities (persons) Human beings come together in groups to achieve common objectives. It is needed to have a different legal personality from the identity of the individuals who form a society. Legal entities are institutions which consist of group of persons, or group of assets, allocated in order to pursue a certain and continuous purpose. Such collaboration is legally called either a society or association., depending on the nature of the purpose of the founders. Not only real persons but legal personalities are the subjects of rights. They can also enter into transactions, own property, have their own name and a legal domicile. LEGAL ENTITIES Legal persons are entities created by the function of law, and not biology. For example, an association, a foundation, a corporation are all legal persons and thus subjects to private law entitled to enjoy legal rights, but also possesing duties as well. Legal persons are legally capable of having rights and incurring obligations except for those that are inseperably interwined with human nature such as sex, age or family relationship. (Art.48 / Turkish Civil Code.) Legal entities are regarded to have the capacity to act whenever they get organized under the prevailing laws and as set out in incorporation documents. (Art.49) -The will of a legal entity is expressed through its organs. The organs may put the legal entity under obligation by legal transactions and all other acts. The organs of legal entity are also individually responsible from their defaults. (Art.50) In case of dissolution of a legal entity, the capacity of the legal entity to act continues during the course of liquidation, but in the limited manner, until the liquidation process is finalised. (Art.52) LEGAL ENTITIES Associations ( Societies) An association is defined as a society formed by unity of at least seven real persons or legal entities for realisation of a common object other than sharing of profit by collecting information and performing studies for such purpose. The associations are regarded as legal entity from the very moment they present declaration of incorporation, by-laws and other documents required for incorporation to the highest administrative authority at the locality of their domicile. The content of incorporation declaration and the documents required for registration are set out in the regulations. LEGAL ENTITIES FOUNDATIONS The foundations are the charity groups in the status of a legal entity formed by real persons or legal entities dedicating their private property and rights for public use. The entire property or all kinds of income received or to be received from the activities, or economic values of any real person or legal entity may be endowed to a foundation. There is no membership status in the foundations. The proprietorship of the dedicated property and the rights are transferred to the foundation after it achieves the status of a legal entity. The foundation is regarded in the status of a legal entity when it is being registered in the records kept by the court of that location. Legal entities BUSINESS ASSOCIATIONS General Partnership (Kollektif Şirket) Limited Partnership (Komandit Şirket) Limited Partnership in which the Capital is Divided into Shares (Sermayesi Paylara Bölünmüş Komandit Şirket) Limited Liability Company ( Limited Şirket) Stock Corporation ( Anonim Şirket)  PARTNERSHIP A general partnership (Kollektif Şirket) is an arrangement by which two or more persons agree to share in all assets, profits and liabilities of a business A limited partnership (Komandit Şirket) exists when two or more partners unite to conduct a business in which one or more of the partners is liable only to the extent of the amount of money that partner has invested. A partnership limited by shares (Sermayesi Paylara Bölünmüş Komandit Şirket) is a hybrid between a partnership and a limited liability company. The capital and ownership of the company is divided between shareholders who have a limited liability and one or more partners who have full liability for the remainder of the company's debts. LIMITED LIABILITY COMPANY ( Limited Şirket) A limited liability company is a corporate structure whereby the members of the company are not personally liable for the company's debts or liabilities. Limited liability companies are hybrid entities that combine the characteristics of a corporation and a partnership or sole proprietorship. Stock Corporatıon (Anonim Şirket) A Stock Corporation is a corporation in which the capital is contributed by the shareholders and divided into shares represented by certificates.