Executive proceeding is a legal way that is referred to because the borrower does not pay the debt and stands out with the execution aspect. In execution proceeding, which is divided into enforcement proceeding without judgement and with judgement, the goal is to ensure that the borrower performs enforcement activities in the direction of paying off his debt by the state.
Enforcement proceeding refers to the legal process for the forced execution of debts using state power. According to our legal system, the authority to carry out forced enforcement actions is only the authority of the state. Compulsory execution bodies have the authority to use force to perform these operations.
In our Enforcement Bankruptcy Law, it is regulated how enforcement proceeding will be performed.
In order for enforcement proceedings to be initiated, an enforcement proceedings request is required by the creditor to notify the enforcement director.
As a rule, compulsory enforcement is placed on the debtor's assets. However, in some exceptional cases, it has been accepted that the debtor may resort to imprisonment in order to determine the location of his or her property. In order to make enforcement effective, enforcement and bankruptcy crimes have been accepted and organized in the Enforcement And Bankruptcy Law, witin a separate section.
Again, it is worth noting that everything contained in the debtor's assets cannot be confiscated. Confiscation of the debtor's assets in order for the creditor to get what he will receive, is not absolute. It has been accepted that some goods, rights and receivables of the debtor cannot be confiscated due to some humanitarian and public order considerations.
It is possible to basically divide the parts of enforcement law into Enforcement with judgement and without judgement.
WHAT IS A ENFORCEMENT PROCEEDİNG WİTH JUDGEMENT?
Enforcement is regulated by articles 24-41 of the Bankruptcy Code. In matters other than these articles, it is stated that the provisions on enforcement proceeding without judgement shall apply.
The creditor has a court order against the debtor.
When the creditor applies to the Enforcement Office with this court order, he / she also informs him / her that he / she has chosen a process to the enforcement proceeding with judgement.
Here it should be noted that a lawsuit must be filed and an application must be received from the court in terms of receivables other than money receivables. The legislator has adopted this rule, except for the way in which the leased property is evicted through enforcement proceeding without judgement.
WHAT ARE THE DOCUMENTS THAT ARE CONSIDERED AS A JUDGEMENT AND A JUDGEMENT?
The sealed examples of the court's decision given to the parties are called the judgement/copy of the judgement.
The Code Of Civil Procedure, Article 301/2 : A copy of the provision given to each of the parties is a judgement.
The provision paragraph on compensation and judicial expenses of criminal courts, administrative judicial declarations issued as a result of a full remedy action, Court of accounts declarations, arbitration decisions and foreign court declarations and foreign arbitration decisions that have been duly decided on enforcement, are included in the concept of declaration.
Notices containing the determination provision cannot be enforced. However, the section on judicial expenses contained in the determination provisions may be subject to a enforcement with judgement.
The legislator agreed that some documents shall also be considered as a judgement.
According to Article 38 of the Enforcement Bankruptcy Code, these documents:
Notarized notes issued before the court, admissions and admission of money debt, as well as bailouts in the Enforcement office, are subject to the provisions on the enforcement with judgement. Guarantee of enforcement in this article is a joint guarantee.
In special laws, are also arranged the documents that are consıdered as a judgement. For example, contracts, commitments, receivables, papers used in transactions in Agricultural Credit Cooperatives and approved by the village or neighborhood elders committee may be counted.
Law Of Attorney
Compromise
Article 35 / A - (Annex : 2/5/2001-4667/23 md.) Lawyers may invite the other party to compromise together with their clients, provided that the parties exclude issues that they may obtain as a result of their will, in cases and cases that have been filed or submitted to them before the trial has begun. If the counterparty responds to this invitation and a settlement is reached, the minutes containing the subject of the settlement, the place, the date, the issues that they must mutually fulfill will be signed together by lawyers and their clients. These minutes are judgements according to Article 38 of the Enforcement and Bankruptcy Law.
ENFORCEMENT PROCEEDİNG WİTH JUDGEMENT
Movable Delivery
The provisions for the enforcement of the judgements laid down in Article 24 of The Enforcement Bankruptcy Law and it begins with the delivery of the movable first.
In the enforcement of the judgements of movable delivery, the enforcement officer notifies the debtor of the enforcement order and gives a period of 7 days for delivery. In the enforcement order it is written that the names and surnames, publicity and settlements of the creditor and the borrower and, if applicable their attorney, the name of the court giving the verdict and what it is, the date and number of the application, and the forced enforcement shall continue unless a decision is made from the enforcement court or the court to which it belongs by appeal or appeal or extradition.
If delivery does not take place within 7 days and the such moveable property or its similar found in trustee, it is taken from the debtor's hand and given to the creditor. If the borrower is moved or has the same amount, the written value shall be taken in the purchase, and if he does not give it, it shall be taken through foreclosure without the need for any other processing.
In cases where the movable property has no value in the judgement or is disputed, its value is determined by the procedures specified in the Enforcement Bankruptcy Law.
Child Delivery
From the enforcement of the judgement on the delivery of the child, the enforcement officer notifies the debtor of the enforcement order and gives a 7-day period for delivery. Again, if the debtor does not meet the requirements of the enforcement order, the provision shall be enforced.
The enforcement of these judgements is carried out by the presence of an expert such as a social worker, pedagogue, psychologist or child developer appointed by the Social Services and Child Protection Agency together with the executive director, and an educator where they are not present.
Enforcement Of A Judgement For Personal Relationship With Child
In the enforcement of the judgement on the establishment of a personal relationship, it is not prevented that the creditor having a personal relationship with the child established due to the declaration; otherwise, the debtor is notified by an enforcement order according to the Article 24 that the provision of the judgement shall be enforced.
The exforcement of these judgements is carried out by the presence of an expert such as a social worker, pedagogue, psychologist or child developer appointed by the Social Services and Child Protection Agency together with the executive director, and an educator where they are not present.
Real Estate Eviction And Delivery
In the enforcement procedures for the evacuation and delivery of immovable, if the immovable property is in the hands of the debtor or a third party, there are different practices.
If the property is in the hands of the debtor, the execution order for eviction and delivery is notified to the debtor and given a period of 7 days. If the debtor does not fulfill the eviction or delivery, the judgement shall be enforced by force. If the immovable property is in the hands of a third party, the creditor has the rights that the debtor owns against that person. Good faith provisions are reserved.
Judgements About The Enforcement Of A Work/ Act
In the enforcement of the judgements on the execution of a work, the debtor is notified of the enforcement order. In the enforcement order, there is an order to perform the work within the specified time or if the time has not been assigned, within the specified start and finish times.
If the debtor does not perform the work written in the payment order, the necessary price for the work is determined and the work is done by collecting the debtor.
The Judgements Are Related To The Right Of Easement
The Enforcement officer notifies the debtor of the enforcement order and gives a 7-day period for delivery. In case of the debtor's opposition, the provision shall be enforced.
Enforcement Of Judgements On Ships And Related Real Rights
Decisions on all ships and related real rights in kind, regardless of what the flag they have and whether they are registered in the register, cannot be enforced unless they are finalized.
In cases related to Turkish ships registered in the register and related real rights in kind, if a decision is made in favor of the plaintiff, the court shall notify the ship registry office of its summary along with the pronouncement of the provision without the plaintiff's request, and the provision shall be commented on the ship registry.
If the decision in the case becomes final against the plaintiff in the future, the court shall immediately notify the ship registry office of the summary of the provision.
In addition, in respect of all foreign-flagged ships, regardless of whether they are registered in the register, the court shall make notices to the nearest consulate of the state in which the ship carries its flag.
After the notifications, the debtor is notified of the request for the delivery of the ship within 7 days by enforcement order.
In the enforcement order, it is written that the names and surnames and the settlement of the creditor and the debtor and their representatives, if any, the name of the court giving the judgement, the identity of the ship for which the evacuation and surrender was ordered, the date and number of the judgement, the forced execution shall continue unless a decision is made about the postponement of the enforcement from the enforcement court or the court where appeal or appeal or extradition is being heard.
If the debtor possess to the ship and does not perform the delivery, the judgement provision shall be enforced, if the debtor is not possessor, the creditor shall be able to exercise his right of choice in Article 31/a of the Enforcement Bankruptcy Law.
The creditor may request the receipt of the written value in the judgement of the ship, if it is not written in the judgement, the value shall be determined by an expert, or the creditor shall be able to use the rights held by the debtor against the possessor. If the possessor is based on a contract registered in the ship registry at a date after the date of the case and before the date of the provision, its value will be requested.
When the judgement on the establishment or abolition of the right of mortgage or usufruct on Turkish ships registered in the register is given to the enforcement Office, the enforcement director shall send a seven-day enforcement order in writing in the third paragraph, if the debtor does not comply with the order, the provision of the judgement shall be enforced. Article thirty of the Enforcement Bankruptcy Code shall apply to the enforcement of judgement relating to the performance or non-performance of a work related to the ship and which do not fall under the provisions of the previous paragraph.
Enforcement of The Judgements Concerning The Debt of Money or The İssuance of Guarantees
In the enforcement of the judgements concerning the debt of money or the issuance of guarantees, the enforcement order is communicated. According to the enforcement order, the debtor is warned that he shall pay within 7 days, provide guaranty or make a decision to postponement of enforcement, otherwise he shall be forced to perform.
Upon notification of the enforcement order, the debtor may apply to the Enforcement Court with a petition within 7 days and appeal that the debt has expired or that it has been extinguishing or it is given time. If the claim for extinguishing or giving time is made or duly certified by the competent authorities, or is confirmed by a promissory note approved in the Enforcement office or the enforcement court or before the court, the enforcement shall be postponed.
Postponement Reasons İn The Enforcement Bankruptcy Law
With the provisions entitled holidays and postponement arranged between Articles 51 and 56 of the Enforcement Bankruptcy Law, the legislator does not allow enforcement proceeding operations that making the debtor's situation even more difficult in certain cases.
"Article 52-enforcement proceedures against a debtor whose wife or husband and one of his relative has died, shall be postponed for three days along with the day of death.’’ As can be seen from the text of the article, if the relatives of the debtor die, the enforcement proceedures shall be postponed and enforcement operations shall not be carried out within a three-day period.
"Article 53-due to the debts of the heritage, the enforcement process is postponed within three days along with the day of death. If the heir does not accept or reject the inheritance, according to the law in this regard the enforcement process is postphoned until certain periods of time have passed. When the debtor dies during the enforcement proceedings, if the estate has not been divided yet or has not been subjected to official liquidation or a family business has not been established among the heirs, the process against the estate continues according to whatever procedure would be applied if the debtor was alive. The continuation of this pursuit against the heir is only possible by converting the pledge into money or by means of confiscation.
Again, as in the Fifty-second Article, 3 days of enforcement process shall be postponed, and then the heirs shall expect a 3-month period of rejection of the inheritance. If the heir makes moves that he shall not reject the inheritance, it means that the inheritance is accepted. But lawsuits filed by heirs for the protection of property in heritage do not mean acceptance. Continuation of enforcement process is possible in the form of enforcement process to heirs and heritage. In the process against the estate; the official liquidation should not be made, the heirs should not divide the estate and the family business should not be established, and it is possible to process against the estate through bankruptcy. The process may be continued against the personal assets of the heirs who accept the inheritance, but it is not possible it through bankruptcy against the heirs.
"Article 54: In process against a prisoner or convict who is not a representative, unless the appointment of a representative belongs to the custody Authority, the enforcement officer gives him an appropriate respite to appoint a representative and leaves enforcement process to the end of this period. During this respite, the detainee or convict who appoints a representative and does not notify the Enforcement office shall continue to enforcement process. It is possible to continue the process during this period in order to prevent the goods being hide. If the convict has been sentenced to freedom for more than one year, the enforcement office shall notify the law court of peace to appoint a representative. Continuation of the process in case of hiding goods is also possible here.
“enforcement process against a convict or prisoner who does not have a representative, the Enforcement Department shall give the person an appropriate period for the appointment of a representative, a decision shall be made to continue the enforcement process against a person who does not appoint a representative within the period, does not notify. In terms of preventing the hiding of goods, it is also possible to continue the enforcement process during this time. If the convicted person has received a sentence binding on his freedom for more than one year, the Enforcement Department shall notify the civil court of peace for the appointment of a representative. Continuation of the enforcement process in case of hiding of goods is also possible here.
"Article 54 / a – (Annex-18/2/1965-538/26 md.) As long as the military service continues, the prosecution against the soldiers, corporals and continental sergeants (except specialist or extended sergeants and corporals); The enforcement officer gives him a suitable deadline to appoint a representive and leaves the process to the end of this period. For those who do not appoint a representative and notify the enforcement office within this period, process shall continue. If the debtor is fulfilling his military service, notification may be made and the debtor shall be given time to appoint a representative by the enforcement office. The process shall be left to the end of this period, but for cases where property is likely to be hidden, confiscation may be made.
"Article 55 - (Amended: 18/2/1965 - 538/27 md.) Process may be postponed by the Enforcement officer for a certain period of time in case of a serious illness that the debtor cannot appoint a representative. Severe illness must be accrued with an official document. In cases where there is a possibility of property hiding, confiscation may be made during the continuation of the disease. “If the debtor is in severe illness and the debtor is unable to appoint a representative for himself, the debtor shall be expected to recover by giving time to the debtor. What is meant in the article is to be in an illness that requires intensive care. If the debtor does not recover within the given period, time shall be given one more time and then the process shall continue in his absence. In this case, when there is a possibility of missing property, confiscation proceedings may continue.
Above, the situations in the Execution and Bankruptcy Law have been explained. Apart from these cases, there are special postponement conditions determined by the Turkish Civil Code. These cases are: postponement of bankruptcy, concordat deadline, one month period given to heirs to keep an official book.