Soybağı Davalarındaki Hak Düşürücü Sürelere İlişkin Anayasa Mahkemesi Kararlarının Değerlendirilmesi
Anayasa Mahkemesi, Türk Medeni Kanunu’nda yer alan soybağına ilişkin davalardaki hak düşürücü sürelerin bir kısmını iptal etmiştir. Soybağının reddi davasında koca açısından söz konusu olan, herhalde doğumdan itibaren başlayan beş yıllık üst süre ile babalık davasında çocuk açısından söz konusu olan ve ergin olmasıyla başlayan bir yıllık hak düşürücü süre Anayasa Mahkemesi tarafından iptal edilmiştir. Evlat edinmenin iptalinde söz konusu olan beş yıllık üst süre de ayrıca iptal edilmiştir. Anayasa Mahkemesi, kararlarında bu sürelerin hak arama özgürlüğünü sınırladığını ifade etmektedir. Bununla birlikte Anayasa Mahkemesi biyolojik baba olduğunu öğrenme hakkını da ön plana çıkarmıştır. Bu çalışmanın amacı karşılaştırmalı hukuk çerçevesinde Anayasa Mahkemesi kararlarını değerlendirmektir.
Dismissal of A Board of Directors Member In Joint Stock Companies In The Framework of General Assembly Agenda
Some of the provisions of the Turkish Civil Code that allowed statutory limitations in certain paternity cases have recently been annulled by the Turkish Constitutional Court. The related articles of the Civil Code used to prescribe a fixed time limitation with regard to the father who had to file a case under any circumstances five years after the birth of the child. Moreover, in the former version of the law there used to be a time limitation concerning the child too, who had to file such a case within one year after maturity. The Court’s annulment included also the provision that prescribed at most five years in child adoptions. The Court has annulled the given time limitations on the grounds that such limitation restricts the freedom of claiming legal rights and by emphasising the right to know one’s biological paternity. The purpose of this essay is to discuss these decisions within the framework of comparative law.
Under Turkish Civil Code paternity between the mother and the child is established with birth. However paternity with the father is established through marriage with mother, court decision or recognition. Through adoption paternity can also be founded between the child and the mother or the father. The Turkish Civil Code entered into force in 2002. Since 2002 Constitutional Court had invalidated some provisions about paternity cases. The time limitations in the denial of paternity cases have been removed. According to Art.289 the father could file a case of denial of paternity within certain time limits. The father has to file a case in one year after he has learnt the birth of the child and that he is not the father, and the mother’s sexual relationship with another man. Before the Constitutional Court has annulled there was another time limitation for the father. The father had to file a case under any circumstances five years after the birth of the child. Thus there were two different time limitation, first one started when the father learnt that the birth of the child or that he was not the real father. The second time limitation was an absolute one regarding the birth of the child. In both conditions the case should be filed five years after the birth of the child. But the Constitunional Court has annulled absolute time limitations on the grounds that such limitation restricts the freedom of claiming legal rights. However, actually Article 289 of the Turkish Civil Code also includes an alternative in cases when the time limitations are prolonged as long as there is a justifiable reason. Thus the Constitutional Court need not nullify the absolute time limitations. On the other hand, the necessity of absolule time limitations will be discussed in the essay. Constitutional Court annulled some parts of Article 303 of the Turkish Civil Code. Before the decision of the Constitutional Court according to this provision the child could file a paternity suit against the biological father within one year after the child has reached maturity. A guardian could be appointed to the child before maturity to file this law suit, in these cases the guardian should file the case within one year after he was appointed as a guardian. However the Constitutional Court annuled the provision and according to the new provision the child can file a paternity suit against the biological father without any time limitations. The time limitations are now valid only when the mother files such a case. According to high Court time limitations in paternity cases are restricting the freedom of claiming rights. Utmost benefit of the child also justifies the invalidation of the time limitations in paternity cases for the child. The accuracy of the High Court’s decision will be discussed throughly. Constitutional Court also annuled the time limitation concerning adoption provision. Under Article 319 of the Civil Code there were two different time limitations to invalidate the adoption when there were reasons to file such a case. The persons that have right to invalidate adoption can file such a case within one after they were aware of the facts to invalidate the adoption. However this law suit in any case should be filed within five years after the adoption of the child. After five years nobody can file such a law suit. However the Constitutional Court has annuled the provision and ruled that five years of absolute time limitation restricts the freedom of claiming rights. This decision should be approached with criticism because the reason of time limitations in adoption cases are to protect the best interest of the child and to restrict the invalidation of adoption after certain time limitations are elapsed. The aims of this paper is to discuss the accuracy of Constitutional Court decisions with regard to the comparative law. German law and Swiss law will be taken into consideration to evalute the decisions.
