Basic Concepts of Law I - Week 1 Preliminary Chapter PDF

Basic Concepts of Law I Week 1-Preliminary Chapter Dr. Bihter KAYTAZ EKER Course Plan Your expectation? Our plan: Fall Term-Private Law Spring Term-Public Law Sources for the Course Course Book: Turkish Private Law-Prof. Dr. M. Refik Korkusuz Recommended Reading List: An Int...

Basic Concepts of Law I Week 1-Preliminary Chapter Dr. Bihter KAYTAZ EKER Course Plan Your expectation? Our plan: Fall Term-Private Law Spring Term-Public Law Sources for the Course Course Book: Turkish Private Law-Prof. Dr. M. Refik Korkusuz Recommended Reading List: An Introduction to Law-Rona Aybay Introduction to Law in a Nutshell- Engin Saygin Introduction to Turkish Law-Tugrul Ansay and Don Wallace JR Exam: Mid-term exam: 40% (mixture of various styles, such as test, true-false and/or fill in the blanks questions) Final exam: %60 (exam style is not certain yet) Topics we will discuss are: The difference between private law and public law Branches of public law and private law Legal rules which are dealt with by the Civil Law Background and systematic arrangement of the Turkish Civil Code Principles under the Preliminary Chapter of Civil Code The term «Law»  Collins Cobuild English Dictionary defines «law»: A rule or set of rules, enforceable by the courts, regulating the government of a state, the relationship between organs of government and the subjects of the state and the relationship or conduct of subjects towards each other; A rule or body of rules made by the legislature; The condition and control enforced by such rules; One of a set of rules governing a particular field of activity; A binding force or statement A general principle, formula or rule describing a phenomenon in mathematics, science, philosophy, etc. Notable features of «law»: normative; institutionalized; coercive; protective Shortly, we may define “law” as the rules regulating people in their relationships with each other and in their relationships with the state. Difference between Private Law and Public Law-Roman Jurists Roman jurists divided the body of legal rules into public law and private law, based on «the nature of the interests protected by the law». According to their understanding, public law is that branch of the law which focuses on the interests of the community while private law considers the interests of individuals. In other words, public interests were dealt with by the public law while private interests were considered to fall into the scope of the regulation of private law. Difference between Private Law and Public Law-Today Such division still exists in Continental European countries. However, the theory behind a division like that has evolved in time. Today, it is not easy to distinguish public interest from the private interest because regulation of relations between private individuals and peaceful resolution of disputes are not only the interests of the private individuals involved in the dispute but also the interests of the State. The “interest-theory” of Roman jurists has been replaced with other theories, among which “subject theory” is the one commonly applied. According to this theory, public law and private law are differentiated from each other depending on the character of the parties. Difference between Private Law and Public Law-Today Then, under the subject-theory: Public law handles the relationships and resolution of conflicts between individuals and the State; governmental regulation of individual and corporate activities; organisation and limitations of State power. Private law deals with the relationships and resolution of disputes between private individuals(both legal and natural persons). Difference between Private Law and Public Law-Today Bear in mind that: If one of the parties is the State in its sovereign capacity, then the relation is of public nature and governed by the rules of public law. E.g. for the State acting with sovereign capacity, one may have a look at the relationship between the government and the taxpayer individuals in taxation. Such relationship is public law relationship which would be governed by the law of taxation, which falls into the scope of the public law. If none of the parties are in sovereign capacity, then the relation will be considered as private law matter. E.g for the State in private-law relationship-If a State rents a building from a private individual for the purpose of accommodating an administrative office, then this transaction is not a public affair in the legal sense. The fact that the State is tenant and the private individual is landlord makes this relationship a private-law relationship. Difference between Private Law and Public Law-Today In public law, the State is in a superior position while in the private law there is an assumption that subjects of the private law are equal as a rule, irrespective of gender, nationality, economic or educational circumstances of individuals. Main Branches of Public Law Constitutional Law Administrative Law Criminal Law Public International Law Main Branches of Private Law We may divide the private law into three main branches: Civil Law Commercial Law Private International Law Besides of these main branches, there are some other categories of law that falls within the scope of private law, such as the laws regarding copyright, patents, intellectual property, information technology and protection of industrial rights. Our Route to Analyse the Branches of Private Law Civil Law until week 10 Commercial Law in 10th and 11th weeks Private International Law in Week 12 Labor Law and Civil Procedural Law in last two weeks Check your email for the syllabus for the course Civil Law-Legal Rules under the Civil Law The term civil law is derived from the Roman law term of «ius civile» which was the law applicable to Roman citizens, to the people of the City of Rome. The Turkish term «medeni» comes from the Arabic term «Medine» which means «city». Civil law comprise legal rules related to Personality; Marriage; Family relations; Property rights; Succession (inheritance); Obligations. Civil Law-Legal Rules under the Civil Law It is clear that the legal rules which are covered by the civil law are about economic aspects of social life on the one hand and the legal status of persons on the other hand. Civil Law- Background and the Systematic Arrangement of the Turkish Civil Code Ottoman legal system: “Mecelle” was considered as a systematic and detailed civil code because it regulated Contracts, Obligations, and Civil Procedure Law. The first Civil Code of Turkey was adopted from Switzerland in 1926. After a number of minor changes of this Code in later years, a new Turkish Civil Code came into force in January 2002. Civil Law-The Systematic Arrangement of the Turkish Civil Code The Civil Code consists of  Preliminary Chapter  4 Books, namely (i) Book I-Law of Persons (Articles 8-117), (ii) Book II-Family Law (Articles 118-494) (iii) Book III-Law of Succession (Inheritance) (Articles 495-682), (iv) Book IV-Law of Property (Articles 683-1027). The Code of Obligations is regarded as an integral part of the Civil Code even though it is a separate code. The recent version of the Code of Obligations was adopted in 2011. Civil Law-Preliminary Chapter of Civil Code The Preliminary Chapter of the Turkish Civil Code provides us with the basic concepts of private law from Article 1 to Article 7. These general rules are applicable to all areas of private law. Civil Law-Preliminary Chapter of Civil Code The principles under the preliminary chapter may be collected in 4 groups: Principle 1: “the order of the application of legal rules”(Article 1): - written rules (1st paragraph of Article 1) - customary law (2nd paragraph of Article 1) - the judge-made law (3rd paragraph of Article 1) Civil Law-Preliminary Chapter of Civil Code Principle 2:“the discretion and law-making functions of judges in administration of justice” (Article 1 and Article 4): - «according to the rules that he would lay down if he himself had to act as legislator»(2nd paragraph of Article1) (law-making function) - «where the law leaves a point to the discretion of the judge or directs him to take the circumstances of the case into consideration or to appreciate whether a legitimate ground exists, he must base his decision on principles of justice and equality» (Article 4) (discretionary power) Civil Law-Preliminary Chapter of Civil Code Principle 3: “the role of good faith in legal relations”(Articles 2 and 3) - Conduct in Good Faith-Article 2 - Bona Fides-Article 3 Civil Law-Preliminary Chapter of Civil Code Principle 4: “Rules of Evidence”(Articles 6 and 7) - Burden of proof (Article 6) - Proof by public documents (Article 7)  Word List Public Law: Kamu Hukuku Government: idare, devlet, hükümet, Transaction: muamele, işlem yönetim Private Law: Özel Hukuk Governmental regulation: idari Public affairs: kamu işleri, düzenleme kamuyu ilgilendiren işler Jurist: hukukçu, hukuk bilgini Individual and corporate activities: Tenant: kiracı bireysel ve kolektif aktiviteler Legal rules: hukuk kuralları Relationship: hısımlık, ilişki Taxpayer: vergi yükümlüsü, vergi mükellefi Branch: dal; kol; şube; bölüm Legal person: Tüzel kişi Taxation: vergi tahsilatı, vergilendirme Interest of the community: topluluğun Natural person: Gerçek kişi Govern: yönetmek; egemen ya da kamunun çıkarları olmak; yönlendirmek; sonucu belirlemek Interest of individuals: bireylerin çıkarları Sovereign: egemen, hükümran Gender: cinsiyet  Word List Resolution of disputes/conflicts: Rent/Lease: kiralamak Nationality: milliyet, tabiiyet, uyuşmazlıkların/ihtilafların çözümü vatandaşlık Civil Law: Medeni Hukuk Property right: mülkiyet hakkı Law of Succession(Inheretence): Miras Hukuku Commercial Law: Ticaret Hukuku Succession/inheretence: Miras Law of Property: Eşya Hukuku Private International Law: Obligation: borç; yükümlülük Law of Obligations: Borçlar Hukuku Uluslararası Özel Hukuku Copyright Law: Fikri Mülkiyet Legal status: yasal statü Turkish Civil Code: Türk Medeni Hukuku Kanunu Intellectual Property: fikri haklara Adopt a law: yasayı kabul etmek, Legal existence: kanuni varlık konu olan değerler benimsemek Personality: Kişilik Preliminary Chapter: Başlangıç Codify: kanun halinde toplamak; Bölümü düzenlemek Marriage: Evlilik Law of Persons: Kişiler Hukuku Law of Persons: Kişiler Hukuku Family relations: aile ilişkileri Family Law: Aile Hukuku Codification: yasalaştırma  Word List Integral part: tamamlayıcı parça Heir: Mirasçı Agency: temsil, vekalet Labor Law: İş Hukuku Inheritance: tereke, miras Commercial transaction: ticari işlem Civil Procedural Law: Medeni Deceased: ölü, miras bırakan, Conflict of Laws: Kanunlar İhtilafı Usul Kanunu muris Engagement: nişanlanma Acquisition: kazanım, iktisap Law of nationality: Tabiiyet Hukuku Divorce: boşanma Movable property: taşınır mal Law of foreigners/aliens: Yabancılar Hukuku Paternity: babalık Immovable property: taşınmaz International Procedural Law: mal Milletlerarası Usul Hukuku Child custody: velayet Registration: tescil, kayıt Provison: kanuni hüküm Domestic relations: aile hukuku, Mortgage: Taşınmaz rehni In default of: yokluğunda aile içi ilişkiler Adoption: evlat edinme Sale of goods: mal satımı Discretion: takdir yetkisi Guardianship: vesayet Donation: bağış Good faith: iyi niyet Inherit: miras yoluyla kazanmak Loan: ödünç Employer: işveren/ Employee: işçi