İcra ve İflas Hukukunda mal beyanında bulunmamanın ve gerçeğe aykırı mal beyanında bulunmanın sonuçları
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Date
2011
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Publisher
Sosyal Bilimler Enstitüsü
Abstract
In claims and debt relationships, it?s a must of the principle of fidelity and loyalty (pacta sund servanda) that the debtor pays his/her debt willingly and on time. However, as in all societies it?s possible to have debtors who do not pay their debts willingly. In order for the claimant to receive their debts from the debtors, the debtors have been given the right to get help from the government in trying to receive their debts back from the debtors. The law which helps claimants receive their debts from the debtors with the help of the government is called Compulsory execution law. With compulsory execution law, the debtors property will be seized sold and their debts will be paid to the claimant. It?s usually not possible for the claimant to know how much property the debtor owns. Once the case has been followed and it has come to the stage of foreclosure, the law maker has made the debtor liable to declare their properties in order to foreclose. The claim of property statue in clause 74 of the Compulsory Execution Law is a declaration that states that the debtors property, claims, rights and all types of income and property be notified to official authorities.In order for the claimant to receive their claims, the Compulsory Execution law has put debtors under liability; these liabilities have been sanctioned under the compulsory execution crimes. To provide the liability of declaration of property that forms the subject of scrutiny, sanctions of ?preventive detention? and ?false declaration of property? crimes have been statued in the law. Preventive detention, mostly particular to execution and bankruptcy law is enclosed in clause 76 of İİK in order to detain the debtor preventively for a maximum or three months until the debtor declares his/her property. If the defendant debtor claims a false declaration of property, it is considered as a crime under criminal law that can lead to imprisonment; this is stated in the provision under the 338 clause of İİK. The notion of declaration of property was handled, when these provisions were being analyzed.In the first part, within the frame of declaration of property, the historical development, conditions, content, method of declaration explanations from different angles have been made. It was later analyzed under the sanctions that arose as a result of incomplying to liabilities and lack of declaration of property. When analysis was being made, the execution and bankruptcy law and crimes were generally looked at first, the preventive detention sanctions were tried to be explained. The canceling decision of the Constitutional Court which is related to the ?the liabilities not being met? crime were analyzed in terms of imprisonment for debts and disciplinary imprisonment which is special to administration law.In the second part, under the results of false declaration of property, in the frame of TCK clause 5, the effects of the ?blanket clause?, the other special crime laws, and execution and bankruptcy crimes have been evaluated. Explanations have been made regarding the implementation of the provisions. Finally, explanations were tried to be made about the crime of false declaration of property. When the sanctions were being analyzed, the regulation of legislation clause, elements, criminal and victim were evaluated in terms of method of prosecution and their results.
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Keywords
İcra, İflas, Hukuk