Hukuk Fakültesi Koleksiyonu

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

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A bridge “Maybe” too far: Granting legal personality to animals?
(University of Antwerp, 2021) Başoğlu, Başak; Kapancı, Kadir Berk
Turkish legal system, like all other legal systems is developed by persons and thus, the >main distinction is made between persons and objects (persona and res). According to thistraditional distinction, animals which are not humans but being “other” species in our World,have mostly been considered as objects and thus subject to personal property. In these personorientedlegal systems, including the Turkish one, even the rules relating to animals essentiallyaims to protect the owner of the animals, but not the animals themselves.However, today this paradigm is slowly challenged as “right to life” (to some extent) isgranted to animals under many legal systems (for instance under the Turkish Law on Protectionof Animals dated 24 June 2004). Nevertheless, the boundaries of this right are the interests ofthe people. Unfortunately, the concepts of animal dignity and right to life do not provide enoughprotection to animals. But what could be the solution to better protect the animals? Grantinglegal personality to the animals? Perhaps it is a bridge too far…Throughout the history, personality have been granted to different objects if it isbeneficial and feasible to do so. Accordingly, this paper firstly aims to evaluate whether it isbeneficial and feasible to grant legal personality -partially or as a whole- to the animals. Underthis first sub-title we will discuss as well whether granting to each and every animal a separatepersonality or a sole conceptual one to the entire nature including the animals. Secondly ourwork further targets to reconsider the traditional distinction of persons and things to provide amore specific legal status for animals. Perhaps such a reconsideration could enable us to solveanother controversial issue of our contemporary world: that is the legal status of “strong”artificial intelligence. Moreover, our discussions will comprise the analyse of the legal statusof the “ancient roman law’s slave”, considered as an object though a human being, benefitingfrom different types of legal protection at different levels, at different times. Across the saidcomparisons, at the end, we would like to reach a robust conclusion.
A comparative approach to preliminary examination in Turkish civil procedure law and proceeding in jure in Roman law
(2017) Alpay, Ece
The preliminary examination phase, which is implemented to the procedure to build the case, is an important reform in Turkish Civil Procedure Law which entered in force with the Code of Civil Procedure in 2011. Before the Code of Civil Procedure, the presentation of the written case material to the court inevitably led to case files being inflated and the judges who were already under heavy load had not read the files before the investigation phase. The preliminary examination is the preparatory stage in which the points that the parties agree and disagree are identified prior to the investigation stage, in order to examine and discuss only the disputed facts and the related evidence at the stage of the investigation. In Roman law, in Jure phase was carried out to determine the disputed facts and if there is a right of action, followed by litis contestatio. At this stage, with the participation of the parties, Magistrate specifies the main particulars of the dispute and prepares an agenda for the adjudicating judge to abide. In this presentation, the particulars of the preliminary examination in Turkish Civil Procedure Law will be explained comparatively with the aspects of proceeding in Jure in Roman Law, and the similarities and differences of both concepts will be revealed.
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.
Acıbadem Üniversitesi – defansif tıp
(2015) Karagöz, Havva
...
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.
Avoidance of Contracts Under Turkish Law: a Closer Look To Turkish Case Law Regarding Avoidance of Construction Contracts in Return for Land Share With a Comparison To German and Swiss Law
(2022) Erdoğan, Başak
...
Can quantative analysis boost qualitiy? An empirical research for Turkish administered justice, health and education systems
(..., 2022) Kapancı, Kadir Berk
Justice, health and education systems are the most important pillars of the social state. As a social state, Turkey undertakes in its Constitution to provide state administered justice(art.9), health (art. 56) and education (art. 42). Undoubtedly, the accessibility, quality and reliability of these systems would also increase the trust in the state. However, the efficiency of these relevant services is highly debated in Turkey. The aim of this research is to examine whether performance-based evaluations are included in these relevant systems and also discuss possible suggestions for all three systems. The research consists of three sections:The first section aims to evaluate the performance-based quantitative assessment in the state administered justice system in Turkey. In this system, the performance-based quantitative assessment is used mainly for the purposes of promotion of the judges and the prosecutors. The second section aims to evaluate a possible system of performance-based quantitative assessment in the public health system in Turkey. The third section aims to evaluate a possible system of performance-based quantitative assessment in the education system in Turkey. Accordingly, this research aims to analyze whether it is possible to develop high tech performance-based quantitative assessment systems to boost quality in the justice, health and education services, further to evaluate the extent of the human supervision in order to ensure the compliance to legal rights of individuals in order to prevent possible unexpected and unwanted violations(especially in the field of personal data protection) without enabling any undue influence based on subjective values.
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.
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.
Data Protection Around the World: Turkey
(T.M.C. Asser Press, 2021) Erdoğan, Başak
Like elsewhere in the world, data protection law is a popular topic as an emerging branch in the legal world in Turkey. After the adoption of Law no. 6698 on the Protection of Personal Data (“DPL”) and the formation of the Turkish Data Protection Authority (“DPA”) in 2016, the protection of data subjects’ rights with regards to personal data and privacy has become a major subject of discussions both in the academia and in practice. This chapter deals with Turkey’s stand concerning personal data protection in comparison with the General Data Protection Regulation (“GDPR”). To that extent, this chapter firstly analyses Turkey’s main laws and regu- lations and case-law with regard to the protection of personal data. This is followed by a comparison of the Turkish DPL with the GDPR, where the strengths and weak- nesses of Turkish law in the field of data protection are demonstrated. The chapter concludes with the possible application of the GDPR in Turkey and its impact on the Turkish data protection law.
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.
Die Migrationspolitik Estlands und Ihr Rechtlicher Rahmen
(2016) Kunnecke, Arndt
...
Die Naturrechtsrenaissance in Deutschland nach 1945 in ihrem Historischen Kontext - Mehr als nur eine Rechtsphilosophische Randnotiz?
(2013) Arndt Künnecke
…
Executive Remuneration of Company Directors Under Eu Law and Turkish Law
(Istanbul University Press, 2023) Özcanlı, Fatma Beril
The criteria to determine the material scope of executive pay has always been a controversial aspect of corporate law and corporate governance. The controversy stems from the fact that the board of directors generally tends to determine a suitable executive remuneration for its members, not considering the interests of other stakeholders. In some cases, an independent compensation/remuneration committee is appointed by the board of directors and determines the amount of executive pay. Depending on the legislation, this may require additional approval at the annual general meeting by the shareholders. European legislators have differing approaches with regards to regulating this very area of corporate pay. The revised Shareholders Rights Directive requires an enhanced approach for the shareholders' role by determining the remuneration policy of the company. These amendments can be identified as the promotion of the say on pay, on the remuneration policy, and remuneration report. Furthermore, the previous recommendations have also set the criteria to determine the amount of remuneration. The Directive contains provisions for setting up a clear and transparent corporate remuneration policy and shareholders' binding vote with temporary derogations. The corporate remuneration system of Turkish law is legislated under Art. 394 TCC (Turkish Commercial Code Nr. 6102), which only requires that board members can be paid an honorarium, salary, bonus, premium, and a portion of the annual profit, provided that this amount is determined by the articles of association, or by way of a general meeting resolution. Art. 408 TCC also stipulates a binding general meeting approval of the remuneration policy, whereas Art. 513 TCC requires the framework with regard to bankruptcy procedures. © 2023 Istanbul University Press. All rights reserved.
Executive remuneration under the EU law and the Turkish law
(Leiden University, European and International Business Law (Advanced LL.M.), 2018) Özcanlı, Fatma Beril; Masouros, Pavlos
Commission’s proposal on the amendment of the Shareholders Rights Directive points that the regime under the current remuneration system based on the alignment of the shareholders’ interest with the company’s’ is not working out anymore. With regards to that fact the proposal suggested amendments to enhance shareholders oversight. These amendments can be identified as the promotion of the say on pay on the remuneration policy and remuneration report. And furthermore, the previous Recommendations have also set the criteria to determine the amount of remuneration. On the other hand the regime under the Turkish Law is quite different than the EU-system. Remuneration of the directors can be designed based on a general assembly meeting decision or on a provision in the articles of association of the company. Besides the corporate governance principles, there is no criteria set for the companies to determine the material amount of the remuneration.
Flipped Learning in Legal Education: a Personal Experience
(Emerald Group Publishing, 2016) Karacaoğlu, Emine
There are always discussion on how legal education are to be taught interactively and effectively. Flipped learning are now considered as one of these methods engaging students in studies more effectively by way of pre-class activities and during the class discussions. This article in on a personal experience about this systems in legal education.
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.
General Principles of Transitional Justice and the Turkish Context
(Euro Med, 2025) Dinçer, Hülya; Dinçer, Hülya
This paper was presented in the international conference on "Transitional justice in the MENA Region: Challenges and Opportunities" organized by EuroMed and Human Rights Association on February 8-9 2025 in Istanbul. The paper address how the fundamental principles of transitional justice such as legal accountability, truth-telling and the guarantees of non-repetition be applied effectively in Turkey's current political and social climate.
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?
Grevci Sendikanın Grev Uygulanan Ünitede Üye Kaybı Sonucu Grevin Sona Erdirilmesi ve Toplu İş Sözleşmesi Yetkisinin Düşüp Düşmeyeceği
(MEF Üniversitesi, 2022) Akyiğit, Ercan
6356 sayılı Kanun md. 75/6 hükmü, mülga 2822 sayılı Kanun md. 51/4 ile öz itibariyle benzerdir. Ancak Anayasanın kanunönünde eşitlik (AY. 10), olumsuz sendika özgürlüğüne (AY. 51), işçilerin toplu iş sözleşmesi yapma (AY. 53) ve aslında sendikahakkının bir uzantısı ve doğal içeriğine dahil sayılan grev hakkına (AY. 54) aykırı hükümler taşımaktadır. Hükmün bir an evvelAYM tarafından iptali ve yasa koyucu tarafından da grev oylamasının daha anlamlı ve içerikçe doygun olarak düzenlenmesigerekmektedir.

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