Hukuk Fakültesi Koleksiyonu

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

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Department: search.filters.department.Hukuk Fakültesi, Medeni Hukuk Anabilim DalıLanguage: search.filters.language.en

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Now showing 1 - 10 of 21
  • Book Part
    UNIDROIT
    (Mohr Siebeck, 2025) Kapancı, Kadir Berk
    This volume brings together leading scholars and practitioners to examine how diverse legal systems - both common law and civil law, national and international - approach the questions of control and ownership of digital assets. The comparative inquiry reveals not only doctrinal differences, but also shared concerns over legal certainty, market efficiency, and the adaptation of traditional legal categories to new technologies. The chapters traverse a wide range of jurisdictions. Contributions from Germany, France, Switzerland, and Australia illustrate how civil law systems grapple with the limitations of traditional doctrines of tangibility. The United States chapter analyzes the introduction of Article 12 to the Uniform Commercial Code, with its creation of »controllable electronic records«. The United Kingdom and Brazil chapters demonstrate how common law and hybrid systems have sought to adapt flexible doctrines to novel technical architectures. The Hong Kong and Singapore chapters show how Asian common law jurisdictions combine pragmatic judicial reasoning with increasingly granular regulatory oversight. The Mexico chapter highlights how pioneering statutory definitions-such as those in the 2018 Fintech Act-proved both innovative and unduly narrow, creating gaps in the classification of assets under private law. The Taiwan chapter examines the courts' characterization of virtual assets as »movable things,« while suggesting a shift toward a ledger-based model of public notice. Finally, the chapter on UNIDROIT's Digital Assets and Private Law Principles (DAPL) situates these national approaches within an emerging body of international soft law, where the concept of »control« serves as a functional analogue to possession. Taken together, these contributions illustrate convergence in recognizing that digital assets must be capable of being treated as objects of property rights, while also exposing divergence in the doctrinal and institutional means by which that recognition is achieved.
  • Article
    The Impact of Force Majeure on Contracts for the International Sale of Commercial Goods Under Art. 79 of the CISG
    (Istanbul Universtiy Press, 2025) Başoğlu, Başak; Kapancı, Kadir Berk; Kapancı, Kadir Berk
    The United Nations Convention on Contracts for the International Sale of Goods (CISG) aims to harmonise inter0 national trade law by providing unified rules for sales contracts across its 970member countries, as of April 2025. Despite its wide adoption, the CISG’s approach to non0performance and liability differs markedly from domestic legal systems, particularly those based on civil law traditions. The CISG provides that the debtor failing to perform their obligations must compensate for the loss, unless exempted under Article 79, which introduces the concept of “impediment beyond the debtor’s control” as a basis for exemption. For this exemption to apply, the impediment must be unforeseeable, unavoidable, and the direct cause of the failure to perform. However, these criteria make its application rare in practice, while its requirements have been satisfied in only a limited number of cases. This study examines Article 79 CISG in detail, exploring its stringent criteria and the challenges it presents in practice. Furthermore, the paper will assess Article 79’s effectiveness in addressing force majeure and hardship scenarios, despite the absence of explicit references to these concepts within the CISG text.
  • Conference Object
  • Conference Object
    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.
  • Conference Object
    The Impact of the Force Majeure on Contractual Obligatıons Special Report on the United Nations Convention on The Contracts for The International Sales of Goods (cisg)
    (International Academy of Comparative Law, 2022) Kapancı, Kadir Berk
    The effect of force majeure on contracts has possibly been the most debated subject of the law of contracts in the past two years. In this report, the effect of force majeure on the contracts for the international sale of goods will be analyzed withi n the context of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Even though the CISG does not directly refer the concept offorce majeure, the issue is dealt with under the highly controversial article 79 of the CISG. In this report, the conditions and consequences of exemption from liability under the article 79 will be examined.
  • Conference Object
    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.
  • Article
    The Scope of Application of Turkish Groups of Companies Law Provisions
    (Mef Üniversitesi, 2022) Özcanlı, Beril Fatma
    The new Turkish Commercial Code (TCC) has introduced the notion of groups of companies, however it does not entail anyprovisions with regards to the scope of application of the provisions. After the enactment of the TCC, a new Trade RegistryRegulation (TRR) was adopted. Article 105 TRR stipulated the scope of application with regards to the groups of company lawprovisions of the TCC. According to that, at least three commercial companies, one of which is a controlling and two of whichare dependent companies, are required for the formation of a group of companies. In cases where the controlling entity is anenterprise, the number of dependent companies must exceed two, i.e. the existence of at least three dependent companiesare required. However according to Art. 195/4 TCC companies that are directly or indirectly affiliated with the controllingcompany form the group of companies together with it. This paper is trying to examine the relationship between these twoprovisions from the hierarchy of norms perspective. Within this regard, also provisions of the German Stock Corporation Act(AktG- Aktiengesetz) and their scope of application is considered, as the provisions of the AktG regarding the corporate groupsare a fundamental source for the Turkish legislation.
  • Article
    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.
  • Book Part
    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.
  • Conference Object
    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.