Hukuk Fakültesi Koleksiyonu

Permanent URI for this collectionhttps://hdl.handle.net/20.500.11779/1935

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Tackling corruption in transitioning states: international legal regime, state compliance, and best practices
(2015) Clemens, Carson
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The Neural Correlates of the Effect of Belief in Free Will on Third-Party Punishment: an Optical Brain Imaging (fnirs) Study
(Cognitive Science Society, 2022) Çakar, Tuna; Akyürek, Güçlü; Erözden, Ozan; Şahin, Türkay; Keskin, İrem Nur; Ünlü, Meryem; Özen, Deniz Hazal; Özen, Zeynep
Third party punishment (TPP), or altruistic punishment, is specifically human prosocial behavior. TPP denotes the administration of a sanction to a transgressor by an individual that is not affected by the transgression. In some evolutionary accounts, TPP is considered crucial for the stability of cooperation and solidarity in larger groups formed by genetically unrelated individuals. Belief in free will (BFW), on the other hand, is the idea that humans have control over their behavior. BFW is a human universal notion that, in some studies, has been found to be supportive of prosocial behavior. In our study, we examined the effect of BFW on TPP under high and low affect scenarios through optical brain imaging (fNIRS). We hypothesized that in low affect cases, there would be a positive correlation between the strength of the BFW and the severity of the punishment inflicted. Obtained results and related statistical analyses indicate that participants with higher degree of BFW have more neural activation in their right dorsolateral prefrontal cortex (DLPFC) (hbo and hbt measures) in high affect scenarios, whereas the participants with lower degree of BFW have higher levels of neural activation in the medial PFC (hbo and hbt measures) in low affect scenarios. These empirical findings are in line with the research findings in the relevant academic literature and support the hypothesis that the degree of BFW influences punishment decisions.
Are Happy Families All Alike? - a Turkish Perspective on Corporate Governance in Family Firms
(2020) Palanduz, Seda
Corporate law aims to mitigate conflicts of interest among corporate constituencies. Both legal scholars and lawmakers tend to assume that these are rational actors solely motivated by wealth maximization. Family firms, however, add more personal and less rational layers to the inquiry: On the one hand, family ties may enable a relationship of trust that reduces transaction and agency costs; on the other hand, the same intimacy and sentimentality may eventually create conflicts of interest among family members, make the firm vulnerable to changes in the family dynamic, or cause tensions between family and non-family shareholders. Successful family businesses have to integrate family and business governance—a job that, in many jurisdictions, is being unnecessarily complicated due to absence of proper corporate governance regimes supporting family businesses. From a Turkish perspective, this paper aims to discuss ways through which lawmakers may adopt family firm-friendly corporate governance regimes. The choice of jurisdiction is not incidental. In Turkey, where family firms play a crucial role in the national economy, there are no codes of governance or soft law measures specific to them. On the contrary, Turkish Commercial Code includes the principle of statute stringency that prohibits all deviations from legal provisions unless expressly permitted. Turkey serves as a good example to demonstrate the consequences of overlooking particularities of family firms. This paper has two central claims: First, it seeks to establish that lawmakers should prioritize default rules over mandatory ones so that family firms can tailor their articles of association to their unique circumstances through legal devices such as exit rights and share transfer restrictions. Second, it argues that in case of reluctance to negotiate legally binding instruments due to fear of impairing ties of trust and intimacy, non-binding family constitutions should be encouraged as an alternative.
Judicial Independence in Turkey
(Padova University, 2018) Erson Asar, Bilge
Judicial independence is one of the main pillars of a democratic society. However, this important concept has always been challenged by the so-called authoritarian regimes. This paper explores the development of judicial independence within the Turkish legal system and takes a closer look at the challenges that it has been facing over the last decade.
Flipping a Law Course: Opportunities and Challenges
(2017) Ensari, Hafize Sevinç
This paper concentrates on personal experiences on flipped learning at MEF University Faculty of Law. How to develop a flipped law course, the kind of materials and videos we developed and the use of discussions and case studies, the pros and cons of flipped learning in the study of law.
Close Link Between the Right To Specific Performance and Penalty Clauses: a Comparative Approach
(2017) Kapancı, Kadir Berk; Başoğlu, Başak
In a contractual relationship, the debtor is liable for a full and due performance. Furthermore, the parties can also agree on a penalty clause to be performed, in case where the obligation is not diligently performed. Penalty clauses are side-agreements enlarging the scope of liability of the debtor by establishing a penalty to be paid in case of breach of contract. These clauses, thus guarantee the performance by creating pressure on the debtor. These penalties are awarded even if there is no damage. On the other hand, penalty clauses are to be separated from liquidated damages clauses which are also side-agreements aiming to estimate damages in case of a possible breach of contract. In other words, such clauses simply aim to measure damages that are hard to prove once incurred. Liquidated damages clauses can easily be enforced by the courts in both civil and common law countries. However, this is not the case for penalty clauses.
The use of religious symbols at Turkish university
(2015) Kunnecke, Arndt
...
Die Naturrechtsrenaissance in Deutschland nach 1945 in ihrem Historischen Kontext - Mehr als nur eine Rechtsphilosophische Randnotiz?
(2013) Arndt Künnecke
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The evolving concept of affectio societatis
(2019) Palanduz, Seda
Under Roman Law, societas (partnership) was a consensual contract by which two or more parties agree to join their goods or services to carry out a common activity and to share the resulting profits and losses. For the constitution of a partnership, all partners should have the will to contribute to the common activity in question. This will, referred to as affectio societatis, is the intentional element in the definition of a partnership. It not only characterizes a partnership but also distinguishes it from other types of contract, especially from employment contract and contract for work and services. It is beyond question that modern corporate law is more complex than the Roman Law of partnerships. So although the concept of affectio societatis mostly persists, its scope and function are highly disputed. The question is to reconcile the classical definition of affectio societatis with the concept of partnership in today’s limited liability companies with a single shareholder or in publicly traded companies with a large number of shareholders.
The Use of Religious Symbols at Turkish Universities
(2016) Kunnecke, Arndt
This paper shows that although Turkey is formally a laic state, Islam has de facto the statusof a state religion. Therefore, the Turkish state cannot remain neutral in religious matters.Under the current Turkish government Islam has consolidated its position and its symbolshave become visible in the public space. Religious symbols, such as mosques, prayer roomsand headscarves, are spreading at Turkish universities. Current developments show theabsurdity of the concept of Turkish secularism, which originally means the constitutionalseparation of church and state.
Prohibition of Lex Commissoria and Its Impact on Turkish Law
(SIHDA 2023 | University of Helsinki, 2023) Sargın , Hilal Selin
Lex commissoria agreement is described as condition attached to the contract in Roman law. It results in the creditor becoming the owner of the pledged property in case the debt is not paid at maturity, with regard to its application in pledge agreements. The lex commissoria agreements, the first applications of which are accepted to have emerged with fiducia, were prohibited by Emperor Constantine in 326 AD with a decree. Prohibiton of lex commissoria was included in the Codex Theodosianus and repeated by Emperor Iustinian. The reason for prohibition of lex commissoria was the economic crisis prevailing and the need for protection against the deceits of usurers. In Turkish law, the ratio legis of this prohibition focuses on protection of the debtor against lesion. Since prohibition of lex commissoria was mostly applied in the provincial lands and many practices narrowed the scope of this prohibition were accepted, the application area of this prohibition in Roman law is very limited, contrary to Turkish law. Despite the change in economic conditions later on, abolishing prohibition of lex commissoria was not considered necessary and discussed. Prohibition of lex commissoria took its place in Swiss law after the cantons have started to be under the influence of Roman law, and in current Turkish law, due to the adaptation movements at the foundation of the Republic of Turkey. In the Turkish Civil Code, prohibition of lex commissoria is included in Art. 949 for movables and Art. 873/2 for immovables. This study will focus on the emergence and application of prohibition of lex commissoria in Roman law, its effects on Turkish law and its application in Turkish law.
Regula Iuris and Its Reflections on Lex Mercatoria
(SIHDA (68th Session), 2014) Erdoğan, Başak
The rise of lex mercatoria is a common trend in our current legal environment. The subject attracts attention of many academics from different legal systems and academic discussions have been constantly flourishing. The core of these discussions is the roots and sources of lex mercatoria. Concerning its roots, opinions diverge on whether it stems from ius gentium or from medieval merchant law. Another related issue is whether we are facing another era of lex mercatoria with the adoption of soft laws such as UNIDROIT Principles of International Commercial Contracts. As to the sources of the ‘merchant law’, debates focus on which sources lex mercatoria do possess. In general, international conventions on commercial law, commercial customs and usages, model laws, standard contracts and general principles of law are seen as part of lex mercatoria, however different views are taken on their consideration as a source of this legal system detached from national laws. Accordingly, it should not be wrong to say that lex mercatoria is still an ambiguous concept despite its popularity. Hence, opinions vary on its applicability as an ‘anational’ legal order as well: some acclaim its detachedness from national legal systems whereas others cast doubt its existence as a separate legal order. Nevertheless, we do often come across lex mercatoria as a reference to applicable law, especially in arbitral practice. This paper aims to establish a link with regula iuris and lex mercatoria. Some legal maxims are already deemed as being a source of lex mercatoria: examples include ‘pacta sunt servanda’, ‘venire contra factum proprium nemini licet’ (prohibition of inconsistent behavior), ‘culpa in contrahendo’, ‘clausula rebus sic stantibus’ etc. Accordingly, this paper evaluates the place of these maxims in lex mercatoria practice and attempts to find out whether lex mercatoria can be also seen as a new regula iuris on international level.
The transfer of risks in ancient rome and the origins of insurance law
(2016) Uysal, Cem
The notion of “Risk”, if the term is used within the scope of Roman contract law, usually refers to Periculum Emptoris, the risk of destruction or deterioration of the subject of sale. In Roman law, once a contract has been sealed (is perfecta), the periculum would pass to the buyer even if the delivery of the subject of sale hasn’t been carried through. One should remember that if the contract is imperfecta, the risk would remain on the vendor, so it is imperative to know after which steps a contract can be considered complete.
The rights of the child in Turkey
(Springer, 2022) Başoğlu, Başak; Kapancı, Kadir Berk
Children are the core element and the future of a society. However, they are also relatively weak and thus need to be specially protected. Turkish private law, in line with the United Nations Convention on the Rights of the Child, provides a variety of rights to children. The basic rights of the children are regulated under the Turkish Civil Code of 2002. Furthermore, the Turkish Labor Code of 2003, Turkish Penal Code of 2005, Turkish Criminal Procedural Code of 2005, Child Protection Code of 2005 and the Law on the Protection of the Family and the Prevention of Violence Against Women of 2013 also provide special rights and protective measures for children. Accordingly, this paper aims to present an overview of children’s basic rights and the protection mechanisms for children under Turkish Civil Code.
Die Migrationspolitik Estlands und Ihr Rechtlicher Rahmen
(2016) Kunnecke, Arndt
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A Turkish law perspective on the right to be forgotten
(Springer, 2020) Kapancı, Kadir Berk; Paksoy, Meliha Sermin
Since the rule is changed from easily forget to easily remember thanks to the digital Internet platforms, the question if there should be a right to be forgotten consecrated to individuals has become a frequently asked question with - of -course no “one correct answer” in different legal systems all around the world. Turkish legal practice has also encountered different cases where the question if a right to be forgotten should be recognized/accorded or not. Thus, the concept itself and discussions thereon prove to be heated nowadays among legal scholars. Accord- ingly, this article mainly aims to legally analyze the newly emerging concept “the right to be forgotten” and its potential practical impacts to the existing or future Internet technologies, in light of the Turkish legislations and existing case law.
Civic Nationalism, Universalism and War Crimes
(Institute for Philosophy and Social Theory, University of Belgrade, 2016) Erözden, Ozan
During the first phase of Croatia’s transition to democracy, which started with the death of Franjo Tudjman in the end of 1999, the prosecution of war crimes and crimes against humanity allegedly committed by the members of Croatian armed forces and paramilitary during the conflict between 1991 and 1995 was one of the most important issues on the political agenda. During this period SDP, which was the biggest partner of a coalition government, assumed a universalist approach to the issue, advocating impartial criminal prosecution regardless of ethnic background of perpetrators. While in line with the party’s civic nationalist stance, this policy encountered serious challenges as the United Nations War Crimes Tribunal (the ICTY) issued indictments for officials that were considered as heroes of Croatian Homeland War. By examining the case of SDP, this paper aims to discuss whether civic nationalism’s universalist theoretical premises are politically applicable during and/or in the aftermath of violent conflicts generated with extensive reference to ethnic identities.
General Risk Liability Under the Turkish Code of Obligations and Its Implications in Insurance Law: Is It a "frankenstein's Monster"?
(Koç Üniversitesi, 2021) Kapancı, Kadir Berk; Başoğlu, Başak
Risk liability is the strongest of all types of non-contractual liabilities. It is a strict liabilitywhere demonstrating that there is no causality is the only way to be exempted. Therefore, risk liabilitycan never be considered without insurance. This type of liability is usually regulated for specific typesof risks. So, there is always a typical risk defined for a particular operational activity which may causeunavoidable frequent or severe damage, regardless of how much due care is taken.In 2012, Turkish Code of Obligations has introduced a new general clause on risk liabilitywhich is applicable to all kinds of dangerous activities without defining the specific type of risk (art.71). According to this provision, liability could be established if it is demonstrated that an activity ofan enterprise causes an inevitable and significant danger. The said provision is stipulated as follows:“When damage occurs from the activity of an enterprise presenting a significantrisk, the owner of such enterprise and, if any, the operator are severally liable for suchdamage.Considering the nature of the enterprise or materials, tools or powers used in theactivity, if one concludes that an enterprise is likely to cause frequent or severe damageeven if all due care expected from a specialist in such activities is exercised, suchenterprise is deemed to present a significant risk. Particularly, if a special risk liabilityis envisaged in any other law for enterprises presenting the similar risks, such anenterprise is also considered to present a significant risk.Special provisions governing liability for a specific risk are reserved.Even if such activity of an enterprise presenting a significant risk is permitted bythe legal order, those who are injured may claim to balance out the damage caused bythe activity of such enterprise at an appropriate price.”This clause was originally inspired from the article 50 of the Swiss Draft Project for theReform and Unification of Tort Law (Widmer-Wessner Draft Project) but ended up as the“Frankenstein’s monster” as it has not considered this Draft Project in its entirety. At the end, thisprovision has widened the liability of owners and operators of enterprises which presents a significantrisk. But to what extend?The highly debated answer to this question is of utmost importance to set the boundaries ofinsurance. In order to answer this question, one must firstly evaluate the criteria used for assessingthe risk and also the meaning of its vague final paragraph. Accordingly, this paper aims to understandthe rationale for this provision, to evaluate the legal debates regarding the conditions and scope ofliability under this provision and its implications on both tort law and insurance law. Furthermore,this paper intends to discuss the possible role of a general risk clause in our times of climate crisis.So, in a nutshell, the ultimate question of this paper is whether this provision is the “Frankenstein’smonster” or a gateway for climate liability?
Regulated social order and evolutionary adaptation
(2018) Erözden, Ozan
In sum my hypothesis is that juridicity is an adaptation for humans to circumvent an existential threat to the existence of the species. It is not possible to test the validity of this hypothesis in its integrality using present day neuroscientific techniques. But comparative studies examining possible links between working memory, time conception, awareness of mortality, and normative cognition in humans and other species may form a first step in this respect.
Determining Effects of Authoritarianism on Executive Power and Public Administration in Turkey
(Springer, 2023) Sevinç, Zeliha Hacımuratlar
The increasingly authoritarian regime in Turkey has been the subject of many studies in constitutional law and political science. As per the planned neoliberal policies put into action, the role of the state was redefined in 2001 and new elements were added to the administrative structure to play that role. Although the authoritarianism was being experienced with all these aspects in Turkey, a threshold was crossed especially with the experience of the state of emergency of 2016–2018. Clearly, Turkey can no longer be described as a constitutional democracy after the thresholds it has crossed on the way to authoritarianism. What made this transition easy is the legacy of the political regime/culture and public law that has carried on from the past. It can be said that even if Turkey’s shortcomings in terms as organization in line with the requirements of a pluralist, participatory, and deliberative democracy, and the rule of law during the time of the 1982 Constitution did not render today’s authoritarian order mandatory, it has certainly made it possible. In this section, I will examine the transformation effects of the authoritarianism that Turkey has experienced since the 2000s on the executive and administrative organization in the context of the rule of law and pluralist, participatory, and deliberative democracy.

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