Alman ve Avusturya Hukuku ile Karşılaştırmalı Olarak Yağma Suçunda Manevi Unsurun Belirlenmesine Yönelik TartışmalarHüsnü Sefa Eryıldız, Ali Boyracı
Türk Ceza Hukukunda yağma suçu, hırsızlık ve cebir veya tehdit suçlarından oluşan bir bileşik suç olarak kabul edilmesine rağmen, suçun düzenlendiği Türk Ceza Kanunu’nun 148. maddesi lafzında yarar sağlama maksadına açıkça yer verilmemiştir. Kanun koyucunun bu tercihi öğretide yağma suçunun manevi unsurunu ve dolayısıyla uygulama alanını tartışmalı hâle getirmektedir. Bir görüş, yağma suçunun oluşumu bakımından genel kastın varlığını yeterli kabul ederken, ağırlıklı görüş ve uygulama failin aynı zamanda yarar sağlama maksadıyla hareket etmesini aramaktadır. Yağma suçunun manevi unsuru bakımından tartışmalı olan diğer bir husus ise yarar sağlama maksadının muhteviyatıdır. Bu maksadın, hem maddi hem de manevi nitelikteki yarar sağlamayı kapsadığını ileri süren görüşler bulunduğu gibi, sadece maddi nitelikteki yararın sağlanmasıyla sınırlı olarak değerlendiren görüşler de bulunmaktadır. Bu çalışmada yağma suçunun manevi unsuru ve yarar sağlama maksadının kapsamı, Alman ve Avusturya ceza hukuku ile karşılaştırmalı olarak incelenmiş ve konuya ilişkin görüşlerimiz ortaya konulmuştur.
Discussions on the Subjective Element of the Crime of Plunder in Comparison with German and Austrian LawHüsnü Sefa Eryıldız, Ali Boyracı
Although the crime of plunder is considered to be a combined crime consisting of theft and coercion or the threat thereof in Turkish Criminal Law (regulated under Article 148 of the Turkish Criminal Code [TCC]), it is not specifically mentioned with regard to the aim of benefit. This choice of legislation has led to certain discussions about the subjective element of the crime of plunder and its scope of practice in doctrine. While the dissenting view considers the crime of plunder to be committable through general intent, the majority view and court practices consider that the perpetrator must act with the aim of benefit. Another controversial matter on the subjective element of the crime of plunder is how to identify the aim of benefit. Just as some claim that the aim of benefit includes both economic and immaterial benefits, others are also found who consider the aim of benefit to only involve economic benefits. This study examines the subjective element of the crime of plunder and the contents of the aim of benefit by comparing Turkish law with German and Austrian law while presenting the study’s resultant opinion.
To determine whether a crime is committable through general or specific intent, the legal definition of the crime must first be examined. If the legal definition of a crime mentions that the perpetrator must act with a specific intent such as the aim of benefit, these kinds of crimes are only committable through specific intent.
The text of Article 148 of the TCC regulating the crime of plunder does not specifically mention it having to involve the aim of benefit. Therefore, the crime of plunder is said to be committable through general intent. However, in order to determine whether a crime is committable with general intent or specific intent, one accordingly must examine all the features of the crime. For instance, the crime of plunder is considered a combined crime consisting of the theft and coercion or threat thereof in Turkish Criminal Law. As is understood by this, theft is an essential element of the crime of plunder. In other words, the crime of plunder is not committable without theft. Article 141 of the TCC regulating theft also specifically mentions “aim of benefit.” Therefore, this study considers the crime of plunder to be committable only through specific intent (i.e., the aim of benefit). As a matter of fact, the majority view regarding doctrine and court practices is of the same opinion as considered in this study.
Both German (Article 249 of Strafgesetzbuch - StGB, in the version published on 13.11.1998) and Austrian law (Article 142 of Strafgesetzbuch – StGB, 23.01.1974) specifically mention “aim of benefit” with regard to the legal definition of the crime of plunder. Therefore neither doctrine nor court practices may dispute that the crime of plunder is only committable through specific intent in German and Austrian law.
Due to the aim of benefit having a broad meaning, determine what makes up the content of aim of benefit is compulsory. The dissenting view in terms of doctrine considers the aim of benefit to only involve economic benefit, while the majority view in terms of doctrine acknowledges the aim of benefit to include both economic and immaterial benefits.
According to this study’s opinion, the composition of the aim of benefit and the subject of the crime are different from each other. The crime of plunder is regulated in the section titled “Crimes Against Property” in the TCC (Article 148, 26.09.2004). The crimes in this section are intended to protect property, with property being defined as things possessing economic value. As also seen in Turkish Court practices, possessions without economic value (such as a love letter or photograph) cannot be subjected to crimes against property. However, the majority view in terms of doctrine considers that both things possessing economic value as well as things without economic value can be subjected to crimes against property. Due to the laws against crimes listed in the section titled “Crimes Against Property” being intended to protect property, the study considers only things possessing economic value to be subjectable to the crime of plunder. However, a perpetrator can act for both economic and immaterial benefits. In other words, the aim of benefit involve both economic and immaterial benefits.
In German law, the perpetrator regarding the crime of plunder must act with the intention of acquiring property, with the intention of acquiring property not involving immaterial benefit. If the perpetrator does act with the aim of immaterial benefit (e.g., vengeance, joy, rage), the perpetrator is unpunishable for the crime of plunder. In Austrian law, the perpetrator regarding the crime of plunder must act with the intention of enrichment. Therefore, Austrian law states the aim of benefit to only involve economic benefit.
This study examines the subjective element of the crime of plunder and the scope of what composes the aim of benefit by comparing the Turkish Criminal Code with the legal regulations in the German and Austrian Criminal Codes, their doctrines and judicial decisions and also evaluates certain types of criminal events that have been disputed within the scope of the crime of plunder by considering the German and Austrian models, with the resultant opinion of the study being presented.