Principle of Integrity of Private Law and the Application of the 5th Article of the Civil Code in the Family Law
Derya Ateş5th article of the civil code specifies the following: “All general clauses under the Civil Code and Code of Obligations are applicable on all private law relationships to the degree they are appropriate”. With this regulation, the aim of the legislator, the systematic of the clause through its execution, and how the article shall be interpreted should also be determined. 5th article of the Civil Code usually eliminates the gaps concerning private law and general legislative regulations and has an extensive scope of execution. Embodiment of this extensive scope of execution within the framework of “General clauses of Civil Law and Code of Obligations” and “private law relationships” is limited to family law in our study. Thus, it is aimed to specifically exemplify the role of the article in its execution.
Özel Hukukun Bütünlüğü İlkesi ve Medeni Kanunun 5 inci Maddesinin Aile Hukukundaki Uygulaması
Derya AteşMedeni Kanunun 5 inci maddesi hükmü, “Medeni Kanun ile Borçlar Kanununun genel nitelikli hükümlerinin uygun düştükleri ölçüde tüm özel hukuk ilişkilerine uygulanabilmeleri” esasını getirmektedir. Bu düzenleme ile kanun koyucunun amacının ne olduğu; hüküm uygulanırken hangi sistematik içinde yer aldığı ve maddenin yorumunun ne şekilde yapılacağının belirlenmesi gerekir. Medeni Kanunun 5 inci maddesi özel hukuk boşlukları ve genel olarak yasal düzenleme eksiklikleri karşısında çoğu zaman boşlukları ortadan kaldırmakta ve eksiklikler karşısında oldukça geniş bir uygulama alanı bulmaktadır. Bu geniş uygulama alanının “Medeni Kanunun ve Borçlar Kanununun genel nitelikli hükümleri” ve “özel hukuk ilişkileri” bağlamında somutlaştırılması, çalışmamızda aile hukuku alanı ile sınırlandırılmış olup böylece maddenin uygulamadaki rolünün de özel olarak örneklendirilmesi amaçlanmaktadır.
Preliminary provisions of Turkish Civil Code provide both general principles of law, which are the basis for judicial system and guidance to the judges that are rule of law practitioners. Article 5 of the Civil Code, which does not stand out at first, is in fact a versatile and crucial rule of law that often fills specific legal gaps and general legislative regulation gaps, and that offers a pathway to the judge to resolve the issue without having to enforce the Civil Code’s second clause of Article 1. Turkish Civil Code Article 5 which reads as follows: “This Code and the general provisions of the Code of Obligations shall apply as applicable to all private law transactions”, shows on one hand that the divergence between two Laws are only in form, and on the other hand that it is a critical rule of law applicable in all private law relations. As will be discussed below in detail, when the historical development of the Code is examined, it is understood that the lawmaker formed the unity between these two Laws consciously and voluntarily. In relation to the Article 1 of Turkish Civil Code specifying the applicability of the law according to its wording or interpretation to all legal questions for which it contains a provision, and guiding the judge in case of legal gaps which may arise, it is vital to clarify the importance and function of Article 5 of the Code. As a matter of fact, this is a starting point in terms of discussions on whether this clause is necessary, and of determining the scope, function, area of implementation and methodology. In this context, within the scope of the study, the article’s history was reviewed with regard to Turkish and Swiss Laws, particularly in a systematic way. Subsequently, the interpretation of the article in correlation with Article 1 of Civil Code was approached along with the main debates. Lastly, the article was evaluated according to some examples limited to Family Law by objectifying the clause in a narrower scope, since its area of implementation is considerably wide and comprehensive. As it is understood from the examples given on Family Law, debates on “whether this clause is necessary” are in fact about whether the judge performs a direct or a comparative implementation, or whether he/she performs a practice to cover both while implementing the general clauses of Civil Code and Code of Obligations. Likewise, Article 1 of Civil Code draws a roadmap for the potential legal gaps while empowering the judge to apply the law according to its wording or interpretation. At this point, without a doubt, it is the judge who is to decide whether the application should be direct or comparative. Considering the increasing amount of needs in the developing and self-renewing social life and the new legal regulations, the article fairly transforms the general provisions in Code of Obligations and Civil Code into the general provisions of Private Law. The article is also a general reference that strengthens the bond between the two Codes, the relationship between them being emphasized by the legislator. Since reference provisions come in sight when the judge is led by the legislator during a legal regulation to be implemented in a legal issue, Article 5 of Civil Code stands as a general reference provision giving instructions to the judge on comparative implementation. Without doubt, if this provision did not exist the judge would fill out the existing gaps and would find a solution by comparison. However, the fact that the legislator has placed the article in Preliminary Provisions of Civil Code section with general statements, allow a systematic consistency in rulings, in addition to guiding the judge. For this reason, the provision carries importance for the whole Private Law area, rather than being a simple general legal law. Because it permits the judge to control and implement before its execution (if necessary) a rule of law which is not directly connected to the issue at hand. In this case, the judge will take into consideration the general provisions foreseen by Civil Code and Law of Obligations and by pursuing the guidance of Civil Code Article 5 where necessary, will be able to implement the rule of law on a concrete case. For that matter, it will not be wrong to state that as a general reference provision, Article 5 of Civil Code imposes an obligation for comparative implementation before proceeding with second paragraph of the article number 1 of Law.
