Istanbul Law Review
Provisional Legal Protection in Protection Law and Surveillance Measure ApplicationNejat Aday
With the name given to it in practice, precautionary wardship annotation is the most common temporary protec-tive measure among those that are outlined in Art. 420 TCC. However, since there is not a complete consensus about the meaning of this measure between the courts and the offices that execute the decision, big problems arise in practice. Nonetheless the purpose of the wardship is to maintain the welfare of the people in a certain state of weakness. Therefore, the temporary protective measures that the wardship office rules should serve this purpose. If not, against the purpose of the lawmaker, these measures may result in threatening the welfare of the relevant person. In practice, the temporary protective measures ruled by wardship offices are not allowed to be appealed. Because of this illegitimate practice, there are no Supreme Court decisions about this subject, therefore unity in practice cannot be maintained. In this study, we attempt to suggest some solutions by presenting the problem with reference to limited examples from practice.
Vesayet Hukukunda Geçici Hukuki Korumalar ve Vesayet Tedbir Şerhi UygulamasıNejat Aday
Uygulamadaki adıyla vesayet tedbir şerhi, TMK m 420 kapsamında verilen geçici hukuki koruma önlemleri arasında en çok uygulananıdır. Ancak bu önlemin ne anlama geldiği konusunda mahkemeler ve kararı uygulayan merciler arasında tam bir fikir birliği bulunmadığından uygulamada ciddi sorunlar ortaya çıkmaktadır. Hâlbuki vesayet hukukunun amacı, belirli zayıflık durumu içinde bulunan kişilerin esenliğinin sağlanmasıdır. Dolayısı ile vesayet makamının alacağı geçici hukuki koruma önlemlerinin de bu amaca hizmet etmesi gerekir. Aksi takdirde bu önlemler kanun koyucunun amacına aykırı olarak ilgili kişinin esenliğini tehdit eden sonuçlar doğurabilmektedir. Uygulamada vesayet makamlarınca verilen geçici hukuki koruma önlemlerine ilişkin kararlara karşı kanun yollarına başvuru hakkı da tanınmamaktadır. Hukuka aykırı olan bu uygulama nedeniyle konuya ilişkin olarak yüksek mahkeme içtihatları oluşmamakta, böylece uygulamada yeknesaklık sağlanamamaktadır. Çalış-mamızda kısıtlı uygulama örneklerinden hareketle sorunu ortaya koyarak bazı çözüm yolları önerilmeye çalışılmıştır.
Wardship is regulated under the title of “wardship” in the Third Part of the Second Book of Turkish Civil Code titled Family Law. In articles 396-494 of the Civil Code, regulations on restricting the persons in need of protection, which are called narrow tutelage, are included. The purpose of our study is to examine some of the current problems related to the temporary protection measures given by the court during the restriction and wardship process within the scope of these regulations and the custody measure comment which is often applied by the courts to express all such measures. However, these measures are sometimes applied to even after the appointment of a guardian, and similar problems are encountered in the measures taken with or after the restriction decision. Therefore, other measures related to wardship law are mentioned in our study as appropriate. Essentially, the interim measures provided for in TCC Art. 420, which are examined in detail below, are intended to provide temporary legal protection within the period until the relevant decision is taken and a guardian is appointed. For this reason, in cases of necessity in the interim period, judges and temporary legal protections are decided upon for the works and transactions that the guardian will perform at the time or in the future. The law does not define a custody/wardship measure between temporary legal protections. TCC art. 420/1 sets out in general terms that the guardianship authority may take interim measures required by guardianship duties before the appointment of a guardian. An example of temporary measures in the regulation is the temporary abolition of the capacity of the restricted candidate and the appointment of a representative. Accordingly, the wardship authority shall take the necessary measures ex officio before the appointment of the guardian, if wardship affairs are required; in particular, he may temporarily remove the person’s capacity to act and appoint a representative to him/her. It is understood from the phrase especially in the provision that the measures that can be taken by the court are not limited to these, and other measures may be taken due to the nature of the issue. Besides, according to the TCC art. 420, the person who has avoided wardship or who has objected to the appointment of guardian is obliged to carry out the duties of the guardian until another person is appointed. As discussed in detail below, the intention is to ensure as far as possible the well-being of people who are in a limited sense of custody in certain situations of weakness, and to protect them from the effects of these situations. The law is based on the assumption that necessary protection will be provided by the appointment of a guardian to the person who is in such situations of weakness and the custody provisions become effective from this moment on. This is because the final protection of the court will be ensured. Indeed, TCC m 419/1 regulates that wardship authority is obliged to appoint a guardian without delay. The purpose of the provision is to ensure the protection of the person concerned as soon as possible. However, in any case, there will be a short or long trial process until the guardian is appointed. In cases where a restriction decision is required to appoint a guardian, due to the nature of the work, the restriction decision will have to wait. Naturally, it will take time to find a suitable guardian. During this period, it may be necessary to decide on certain tasks such as having the limited candidate undergo emergency surgery, placement in an institution or following up a case or collecting the receivable for health reasons and monitoring the works required by the decision. The temporary legal protections provided for by this article (TCC art. 420) allow the necessary actions to be taken to protect the person concerned during this interim period. Because of this, in the period before the abolition of the wardship institution in Switzerland, the abolition of the capacity to act as a temporary legal protection measure and the appointment of a representative was called a temporary restriction in practice. This legal protection measure, which aims to ensure the protection of the restricted by the restriction decision and the use of the restricted candidate within the period from the appointment of a guardian, should not be called a temporary restriction.