Turkish Law Research Articles

Obaveza društva kapitala da postavi internet stranicu, kao instrument za postizanje transparentnosti korporativnog upravljanja u turskom kompanijskom pravu

One of the most noteworthy innovations in the new Turkish Code of Commerce,1 published in 2011, was the capital companies' obligation to set up a website. It was aimed to institutionalize the companies, ensure that local and foreign investors have the right to get information about the com­pany, and ensure transparency of corporate governance in view of meeting the requirements of harmonization of Turkish Law with European Union Law. Before the Code entered into force on the 1st July 2012, the legislator had shifted on the scope and sanctions of this obligation, especially in re­sponse to the reactions from small-scale capital companies. While all capital companies were initially obliged to set up a website, o the last amendments envisaged thatthis obligation applies only to capital companies which are subject to independent audit. The obligation of capital companies to set up a website is regulated in Article 1524 of the Turkish Code of Commerce, which prescribes that only the capital companies which are subject to independent audit are obliged to set up a company website. Companies must fulfill their obligations by opening a website within three months from the date of trade company registration, publishing a certain portion of the site and posting company announcements and notices, as prescribed by the law. In case a company fails to comply with these obligations, administrative and penal sanctions will be applied.

Children Abuse and Precautions for Child Abuse Within The Scope of Social State

Child abuse is a social problem in that the child is abused physically, emotionally or sexually by parents, carers or any adult. As long as there are no serious consequences, the child abuse is convered up and can be come up as a result of major health problems and with the victim’s referral to the hospital. Although child abuse is considered a social problem due to physical and sexual abuse, it is possible to classify this problem also in the dimensions of emotional and economic abuse. The underlying causes of this problem are cultural events, traditions, education of the parents, family problems, unemployment, etc..Insecurity, self-worthlessness, failures in school life, and the emergence of new phobia are just a few of the problems that arise in abused children. For the solution and prevention of this problem due to the understanding of the social state, there are a number of measures in the Turkish legal order and there are various applications in the sense of social service. In this study, for the purpose of recognition and prevention of child abuse; The application is made in the context of Turkish law and social services. At the same time, increase the control mechanism of child abuse resolution and the necessity of carrying out studies for the meticulous fulfillment of legal practices in order to protect the child from the time of the occurrence of the abuse is emphasized.

A Novelty in Turkish Commercial Life: Execution of QR-Code on Cheques

<p>Cheque is an important payment instrument in commercial life.<strong> </strong>Regulations on cheques, which have a very common application in Turkish law, are included in Articles between 780 and 823 of the Turkish Commercial Code (TCC) No. 6102 and in the Cheque Act No. 5941. Law No. 6728 dated July 15, 2016 have introduced significant changes and novelties in the regulations related to the cheques in both laws. In the preamble of the law, it has stated that these changes were the result of the necessity of introducing new regulations for the purposes of a) the speed and security requirements that cheques necessitate, b) widespread payment by cheque, c) the foundation of cheque holders' protection due to the increase in bounced cheque.</p><p>Among the most important of these changes is that the QR-Code and serial number are accepted as a compulsory form requirement for the validity of cheques. In this study, the detection of novelties related to the QR-Code application expected to give functionality to the cheques and the effects of these regulations are discussed. The QR-Code application is a convenient method to ensure the tracing of the cheques and applicability of statutory regulations on cheques.</p><p>According to the general acceptance in Turkish law, bills of exchange are bills, notes and cheques. These bills of exchange have the ability of negotiability and public security in the case of the qualification of the promissory notes or bearer cheques. Furthermore, the introduction of the QR-Code application on the one hand and the criminal arrangements envisaged in the case of bounced cheques, on the other hand, have led to reaching its final point of the security in terms of cheques.</p>Although cheques are a payment instrument by its qualification, it is also used as a credit instrument due to the possibility of arranging the postdated cheque in Turkish trade practice. Making special arrangements in order to ensure particular protection for the cheque and attractiveness of the cheque have become inevitable in this situation. The risk of bounced cheques in practice is significantly reduced with the aim of protecting the cheque holders prescribed by the amendments.

Forensic DNA Analysis in the Turkish Criminal Procedure Law in the Context of the Law of Germany, Switzerland and Austria

<span style="color: rgb(0, 0, 0);">Developments of the judicial DNA examinations in criminal procedure law have never been completely terminated or fully resolved. Even the legal debates that revolutionized criminal law have now receded into the background. The present study is aimed at rediscussing such issues as creating the authority to record DNA profiles under the criminal procedure law and establishing the national DNA bank of Turkey by reexamining molecular genetic studies in Turkish criminal procedure law. This study consists of three main parts. The first part includes a general introduction to DNA analysis in criminal proceedings, a short history of DNA analyzes in criminal procedure law and an explanation of the status of DNA analyzes against fundamental rights. In the second part of the work, the legislation on DNA analysis of Germany, Austria, Switzerland and Turkey is reviewed with an emphasis given to German and Turkish law. The last part of study deals with the need to foresee two new norms in Turkish Criminal Procedure Law on generating DNA analyzes, recording DNA profiles and analyzing mass DNA data for the future criminal proceedings.</span>

Arbitrability of Disputes Arising from Joint Stock Company Law

While only contractual claims may be requested in arbitral proceedings carried out in accordance with shareholders’ agreements (“SHA”), it is not always possible to prevent claims peculiar to corporate law, such as invalidity of general assembly and board resolutions, action for dissolution and directors’ liability, from being asserted in local courts. Hence, contradicting judgments may be given in these parallel proceedings. For this reason, the rights and obligations stipulated in the SHA are carried into the articles of association (“AoA”) in order to make these mechanisms applicable on corporate level as well. However, the validity of a statutory arbitration clause in the AoA entails a series of issues both in terms of arbitration law and corporate law. This paper addresses the validity of an arbitration clause in the AoA of a joint stock company in respect of arbitrability under Turkish law, and it compares it with German and Swiss jurisdictions in order to propose practical solutions. Our proposal are: (i) the availability and conditions to stipulate an arbitration clause in the AoA should be clearly regulated, (ii) supplementary rules of arbitration that take problems specific to corporate law disputes into consideration should be adopted and (iii) a model arbitration clause referring to the above-mentioned rules should be prepared and published by ISTAC.

Etching the Borders of Arbitration Agreement: the Group of Companies Doctrine in International Commercial Arbitration under the U.S. and Turkish Law

In the 21st Century, the commerce is not confined to the boundaries of any single-nation state. Hence, we have been witness to the transactions and disputes involving multiple parties and legal systems. Assuming that you are an in-house counsel in an MNE. Do you ever wonder whether the parent or sister companies' counsel or the opposing counsel may make contact with you about the arbitral proceedings that your client has never agreed on in the first place? Is it possible whether the non-signatory parties are bound by or benefit from the arbitration agreement, and what could be the possible legal grounds given the doctrine of privity of contract? This article discusses one of these grounds, the group of companies doctrine, in the context of Turkish and US legal systems comparatively and explores its applicability in light of precedents.

Knowledge of cuisine: intellectual property protection in the Turkish food sector

Purpose- This paper examines the overall IP solutions/options that are applicable in the Turkish food sector under the new Law on Industrial Property of Turkey which governs so-called industrial property rights, that is to say patents, trademarks, designs and geographical indications, and aims to serve the interests of all relevant stakeholders, ranging from individuals to all scaled companies which seek IP protection in for various reasons. Although it’s not considered as one of the conventional IP issues, the relationship between foodstuff, and traditional knowledge (TK) is also discussed in this paper for the purpose of demonstrating the overall IP protection that can be offered under the Turkish law. Methodology- In this paper, the applicability of the new Law on Industrial Property, and the overall IP solution on the food sector are discussed. For this purpose, some important questions are addressed, and the new Law, the old Decree-Laws and some other jurisdictions are compared. The criteria of this comparison are the goals of the industrial property system, and the needs of the food sector. The study analyses these considerations with the help of some important examples demonstrating IP protection on the foodstuff. Findings- The findings show that the food industry can be protected by the copyright regime, the recipes can be patented, and the companies can be protected by the new Law concerning geographical signs, designs and trademarks. Conclusion- The paper claims that the existing IP system in Turkey, i.e. the conventional IP tools along with the TK protection, have important benefits for the companies operating in the Turkish food sector to use IP protection as business strategies.

Establishment of temporary work through employment agency

Turkish law maker, enacted legislation regarding temporary work as one of the atypical form of employment for the first time with the Law numbered 4857. Provision in article 7 of the Labour Code, enabled employers to lend its employees only with whom they have a classical employment relationship to another employer temporarily whereas it did not allow employers to conclude a contract with employers to perform in another employer’s workplace, in other words, to set up temporary work through employment agencies. Due to existence of firms operating in this field despite the law and increasing demand of flexibility in working life, article 7 of the Labour Code has been amended by Law numbered 6715 and legal framework of temporary work through employment agency has been drawn up. With this study, it has been aimed to examine this form of employment.

The tale of two data protection regimes: The analysis of the recent law reform in Turkey in the light of EU novelties

Personal data protection regimes across jurisdictions have been faced with new challenges due to certain legislative gaps created by technological advancements and social media eco-systems that place data at the center of connected societies. Realizing this, in April 2016, EU officials adopted Regulation 2016/679 On Protection of Natural Persons with Regard to Processing and Free Movement of Personal Data. At the very same time, the Turkish counterpart finally enforced its Law on protection of such data. This article provides a threefold analysis of the newly introduced reform in relation to the EU rules on data protection and the recently adopted Turkish law, focusing on the citizen, business and governance aspects of the two regimes. Main issues related to cross border transfer of such data are also analysed, considering that in today's digital world it is almost impossible to do business without cross border movement/exchange of data. Since the transfer of personal data to recipients outside the EU/Turkey is normally prohibited unless certain imperative conditions are met, understanding of the lawful data transfer mechanisms in both jurisdictions is essential. Objectives of the article are to examine the two data protection regimes with regard to the new adjustments and assess the extent of consistency between the Turkish law and the reformed EU data protection rules. As being one of the first studies in this context, the article refers to the relevant case law in both regimes. The results of this analysis should be of a particular interest as it comprises a comparative analysis of the legal environment of data protection in the EU and Turkey.

Türk Hukukunda Kamu Görevlileri Sendikalarının Kuruluş ve Örgütlenmesi

Democratic stades granted trade union rights to all employees, including public officials. Turkey is one of this countries which granted trade unions rights to public officials. With amendments made in 2012 in the law no. 4688, the trade unionism of public officials in Turkish law has changed significantly. In this way, the organization and structure of public employees unions have also changed significantly. This study examines the changes in the establishment and strucutre of public officials unions in Turkish law.

Geçmişten gümümüze Türk hukukunda hâkimin tarafsızlığı=From past to present impartiality of judge in Turkish law

Hukukun işleyişindeki temel amaç adaleti sağlamaktır. Adalet ise mülkün (devletin) temelidir. Nasıl ki temelsiz bir bina yıkılmaya mahkûm ise, adalet olmadan da bir Devletin ayakta kalması düşünülemez. Eğer bir toplumda adalete güven azalırsa vatandaşların devlete olan güveni de azalır. Adalet ülküsüne ulaşmak için, yargısal kararların hukuka uygun olması yanında adil ve tarafsız olması esastır. Bu nedenle tarih boyunca tüm hukuk sistemleri ve toplumlarda hukuk kuralları kadar hukuku uygulayanların rolü önemli olmuştur. Adaletin gerçekleşmesi için hiç şüphesiz, uyuşmazlık hakkında karar verecek olan hâkimlerin bağımsız ve tarafsız olması şarttır. Nitekim 16 Nisan 2017 tarihli Anayasa referandumu ile Anayasa’nın 9. maddesine yargının tarafsız olacağı ibaresi de eklenmiş, böylece yargının bağımsız ve tarafsız olduğu hususu Anayasal bir dayanağa kavuşturulmuştur. Ancak biz çalışmamızda bağımsızlık unsurunu değil, sadece, tarafsızlık unsurunu incelemekteyiz. Bu anlamda makalede, Osmanlı Devletinde ve günümüz Türk Hukukunda hâkimin tarafsızlığı kavramına verilen anlam ve tarafsızlığın (tedbirler/önlemler) ve etik ilkeler üzerinde durulmaktadır. sağlanması için öngörülen hukuki düzenlemeler

Akademinin Prekaryası: 50/D’li Araştırma Görevlileri

The focus of this study is to delineate the precarious experiences of research assistants employed under the contract defined by article 50/d of Turkish Law of Higher Education. This study considers 50/d cadres as “precariats” of Turkish academy as explained by Guy Standing in his book named as Precariat; New Dangerous Class. According to Standing, the process of precariatisation results in future insecurity, anxiety, worthlessness, loss of productivity, alienation, exclusion from the system, hopelessness, loss of status, the tendency of obedience and inability of organized action. In this study, it is aimed to explore the modes of precariatisation that research assistants working under 50/d contract facing with. The analysis is held through a qualitative research methodology. Semistructured interviews are held with 24 research assistants working in the institutes of sciences, social sciences, medical and educational sciences working under 50/d contract in a randomly picked Turkish state university. The findings of this study are that interviewers displayed symptoms of precariatisation such as psychological problems and decrease in productivity due to job insecurity and future uncertainty. Additionally; in the study, it has been revealed that the lack of organization is the cause and consequence of job insecurity. As a result, this study has revealed that research assistants which are 50/d cadres can be defined as precariats

The Exportation of Pharmaceutical Products Subject to Compulsory Licenses to Third Countries Facing Public Health Related Problems: Actual Implementation of Relevant Amendments in the TRIPS Agreement into Turkish Law

This paper aims at explaining legal developments in regard to Article 31(f) of the TRIPS Agreement limiting the scope of compulsory licenses to predominant supply of the domestic market with a main focus on Turkish legislation, the law of the World Trade Organization and the European Union.

Turkish Contract Law Reform: Standard Terms, Unforeseen Circumstances, and Judicial Intervention

The aim of the present study is to analyse, in Turkish law, judicial and legislative interventions in the realm of freedom of contract, and to show how, and under what circumstances, contractual expectations depend upon a variety of non-contractual economic and social expectations. I particularly consider the role of good faith and the constitutional principle of protecting the vulnerable in contract interpretation, which first gained high prominence in the case law, and was then, to some extent, codified by the legislature in the 2012 Code of Obligations. I will start by presenting briefly the legal Westernisation process in Turkey as a result of the reception of Swiss private law at the beginning of the 20th century. This will make it easier to understand the organic evolution of judge-made contractual justice, an implicit factor having impact on consumers as well as businesses. I will then critically evaluate the way the legislature codified the case law that had imposed certain fairness requirements reflecting the business environment in Turkey. Such an evaluation will allow me to assess whether the new law is fit for its purpose and prepared for the challenges of the future.

THE LOCAL INTEGRATION AS A DURABLE SOLUTION IN FOREIGNERS AND INTERNATIONAL PROTECTION LAW

Persecution of&#x0D; one party and fleeing of the persecuted one exist from ancient times. With the&#x0D; formation of modern states, it is however more recent to provide a person&#x0D; fleeing from an oppression in a state with distinctive borders with substitute&#x0D; protection. This type of substitute protection in which the protection cannot&#x0D; provided by the government of the person but by the international community is&#x0D; the international protection. According to a generally accepted view, the&#x0D; international protection begins with the substitute protection and it ends with&#x0D; a durable solution for the protected person.&#x0D; &#x0D; In international&#x0D; law, the three accepted methods aiming to supply a durable solution to the&#x0D; persons within the international protection are voluntary repatriation,&#x0D; resettlement and local integration. With local integration, the person is&#x0D; integrated to the society by according her many rights that are also accorded&#x0D; to citizens. By this way the status of the person in society is normalized.&#x0D; With coming in the force of The Foreigners and International Protection Law in 2014,&#x0D; the integration issue has held the first time in the Turkish Law. Legal&#x0D; regulations in the international law on the integration of the refugees and&#x0D; legal regulations in the Turkish Law on the integration of the refugees are the&#x0D; subjects of this study.

Second medical use in Turkey.

Turkish patent legislation complies with European Patent Convention (EPC) 1973 and EPC 2000, but does not have a corresponding provision. This triggers a debate in Turkish Law, where no regulations address protection of second (or subsequent) use. Turkish validations of European patents concerning second medical uses that have been granted within the scope of EPC 2000. However, the approach to national patent applications and patents entered to Turkey through Patent Cooperation Treaty is still questionable since the Patent Decree Law is not offering an explicit protection to second medical use and European Board of Appeal decisions (especially G5/83) are not binding for Turkish authorities. This article overviews the current approach of the Turkish legal system to second medical use patents.

Establishment of Turkish foundations (vakifs) by foreigners

Non-Turkish citizens may establish foundations in Turkey according to the reciprocity principle. These foundations will be subject to Turkish law, and must therefore be charitable foundations. Turkish law also imposes certain restrictions on acceptable purposes for foundations, on the roles of foreigners in the bodies administering foundations, and the acquisition of real estate. In addition to charitable foundations, it is also possible to establish family foundations in Turkey. However, the permitted scope of the purpose of such a foundation in Turkey is more limited than that allowed to private foundations in Continental European countries. We will attempt herein to sketch for foreigners the process of establishing a foundation (vakif) in Turkey.

The regulation of Internet intermediaries under Turkish law: Is there a delicate balance between rights and obligations?

The maintenance of order in cyberspace has always played a key role in the regulation of the Internet in Turkey and, historically, it has been the main impetus behind Internet reforms. The Turkish Internet Law has evolved from a piece of legislation on the protection of children into a comprehensive piece of legislation that also integrates the rules laid down for the protection of Turkey's national security, the maintenance of public order, and the prevention of offences committed online. Turkey, a member of the Council of Europe and a candidate country for European Union membership, has increasingly tightened its grip over the Internet. It has simultaneously established the legal and political context whilst at the same time undertaking significant upgrades of the Internet infrastructure as an additional way of enhancing its control. In the same context, Internet intermediaries such as Internet service providers and hosting providers are playing a more active role in the process of law enforcement.This article examines the regulation of Internet intermediaries under the Turkish law and analyses the legal, institutional and policy framework of the Internet intermediaries in Turkey. The article maps out, in the widest context, the legal, criminal and administrative liabilities of Internet intermediaries and then focuses on data retention and data disclosure requirements, online surveillance, and voluntary and mandatory filtering requirements. It also considers certain practices like that of deep packet inspection, the role of intermediaries in preventing the diffusion of offensive content or the perpetration of copyright infringement, the enforcement of data subjects' rights, the implementation of notice-and-takedown procedures, and their liabilities for providing information to public bodies and law enforcement agencies. After setting the context, the main objective of this article is to explore the delicate balance between the rights and the obligations of Internet intermediaries under Turkish law.

Victims’ Rights: A Comparative Study of the eu Directive on Victims’ Rights and Turkish Law

In light of international advances in victims’ rights, their evolution and current status within national laws could be attributed to the efforts of international bodies. The latest European Union (eu) Victims’ Directive is the most detailed legislation to date. As a prospective eu Member State, Turkey should model this Directive. This comparative study identifies Turkey’s deficiencies in victims’ rights and highlights structural and cultural differences in provisions for victims’ rights within the eu Directive and Turkish law. Turkey’s ensuing adoption of Western law necessitates prerequisite awareness-raising on victims’ rights among authorities. While Turkey’s existing legal system entails effective legal remedies for ensuring victims’ rights within criminal proceedings, victim support services, additional protective measures and non-governmental organisations (ngos) remain inadequate. Thus, Turkey is more in need of a roadmap and planning than of legal regulation. In this regard, the eu Victims’ Directive can provide valuable insights.

Combatting fraud as a disincentive of an unintended economic migrant: A comparative review of the direct Turkish model and the indirect Australian model

Under the new Turkish Law on Foreigners and International Protection (Article 54) represents a rapid deterrent approach as the consequences of fraud are implemented within 30 days. In contrast to the Turkish approach, Public Interest Criteria 4020 used in Australian law implies a lengthy process that may take up to two years. A quantitative analysis of retrospective data (2010-2014) of the Australian Migration Review Tribunal substantiated the notion that in contrast to the Turkish model, the Australian model is used as a procrastinating tool to the advantage of unintended economic migrants to remain in Australia.