İcra İflas Dairesi Görevlilerinin Hukuki Sorumluluğu Kapsamında Zarar Görenin Kusurlu İşlemi İptal Ettirme İmkânını Kullanmamasının EtkisiSerpil Işık
İcra İflas Kanunu m 5 uyarıca icra iflas dairesi görevlilerinin hukuki sorumluluğunun söz konusu olduğu bir durumda doktrinde tartışmalı olan bir husus, icra iflas dairesi görevlilerinin kusurlu fiilleri ile zarara uğrayan üçüncü kişilerin zararın doğumuna sebep olan işlemi iptal ettirme imkanına başvurmayarak İİK m 5’te düzenlenen hukuki sorumluluk hakkındaki esaslar uyarınca zararın giderilmesini talep etmelerinin mümkün olup olmadığı meselesine ilişkindir. Çalışmamızda, icra iflas dairesi görevlilerinin hukuki sorumluluğu hakkında genel açıklamalarda bulunulacak ve İİK m 5 hükmünde öngörülen hukuki sorumluluğun özellikleri, şartları ile hukuki niteliği ortaya konulacaktır. Sonrasında ise, İcra İflas Kanunu m 5 uyarınca, icra ve iflas dairesi görevlilerinin kusurlu fiilleri sebebiyle sorumluluklarının doğması halinde, aynı zamanda zarar görenin zararın meydana gelmesini önlemek, zarardan kaçınmak veya zararın miktarını azaltma imkânı bulunmakla birlikte; bunun için elinde olan imkanları kullanmayarak gerekli yollara başvurmamış olmasının -diğer bir ifadeyle zarar görenin kusurunun (müterafik kusurun)- etkisi değerlendirilmeye çalışılacaktır.
Impact of Situations Where the Party Incurring Damages Does Not Use the Opportunity to Cancel the Faulty Transaction within the Context of the Legal Liability of Enforcement and Bankruptcy Department OfficersSerpil Işık
Regarding a situation where officers of the enforcement and bankruptcy department have legal responsibility as per Article 5 of the Enforcement and Bankruptcy Law, a particular point that is debatable in the doctrine is related to the issue of whether third parties incurring losses due to faulty acts of enforcement and bankruptcy department officers shall not apply to cancel the faulty transaction causing them to incur damages but shall have the opportunity to claim recovery of damages as per the rules related to legal liability regulated by Article 5 of the Enforcement and Bankruptcy Law. In our study, general explanations are first made about the legal responsibility of enforcement and bankruptcy department officers, and the features, terms, and legal quality of the legal responsibility foreseen in Article 5 of the Enforcement and Bankruptcy Law are revealed. Afterwards, if liabilities of enforcement and bankruptcy department officers arise due to their faulty acts as per Article 5 of the Enforcement and Bankruptcy Law, when there is opportunity for the party incurring damages to avoid occurrence of losses, to avoid damages, or to mitigate the amount of losses, situations where they do not use the opportunities they have or make the necessary applications will be evaluated. In other words, the impact of the fault of the party incurring losses will be considered.
If officers of enforcement and bankruptcy departments cause third parties to incur damages due to their acts and transactions as they undertake necessary enforcement activities in accordance with their tasks, then they will be responsible for the recovery of the damages that emerge. Article 5 of the Enforcement and Bankruptcy Law (EBL) No. 2004 under the heading “Responsibility” (hereafter Article 5 of the EBL) regulates the rule applied in indemnification cases opened for the purpose of recovering losses caused to third parties as a result of the faulty acts and transactions committed by enforcement and bankruptcy officers in the fulfillment of their tasks. In indemnification cases that enter the agenda regarding damages to third parties due to the fault of enforcement and bankruptcy law officers as per Article 5 of the EBL, the party responsible in the first degree shall be the “government” (Ministry of Justice; Article 5/f 1, c 1 of the EBL). In this respect, if the government loses an indemnification case that was opened against it, then it gains the opportunity to open a counter recourse case against the enforcement and bankruptcy department officers who caused the said third parties to incur damages due to their acts or transactions and to claim repayment of the indemnification that was paid (Article 5/f 1, c 2 of the EBL).
Within the scope of the study, revealing the meaning of the legal liability of enforcement and bankruptcy department officers as stated in the provision of Article 5 of the EBL is important. Accordingly, the legal arrangement described in Article 5 of the EBL and that specifies that an indemnification case can be directly opened against the government overlaps with the concept that the government holds first degree responsibility due to damages that emerge as a result of faulty acts and transactions caused by enforcement and bankruptcy department officers due to their tasks or during the execution of their assignments.
Although the legal liability of enforcement and bankruptcy department officers is regulated as per the SchKG Art. 5, the indemnification case that will be opened against the government is similar to an indemnification case originating from unfair acts described in the provisions of Article 49 of the Turkish Code of Obligations (TCO) No. 6098 (Article 41 of the Law of Obligations No. 818), which became effective on 01.07.2012. For this reason, the conditions of an indemnification case opened due to liability in accordance with Article 5 of the EBL will be similar to an indemnification case originating from an unfair act. Hence, the conditions required in an indemnification case opened against the government due to the acts and transactions of enforcement and bankruptcy department officers shall be called “legal violation,” “fault,” “damage,” and “causal link.” Moreover, considering the provisions of Article 49 of the TCO is necessary to understand or explain the particulars meant by the concepts of “legal violation,” “fault,” “damage,” and “causal link,” which are required in indemnification cases opened due to the legal liability of enforcement and bankruptcy department officers. Furthermore, as per the aspects of the liability cases described in Article 5 of the EBL, an indemnification case is subject to the law of procedures because it will be opened due to the legal liability of enforcement and bankruptcy department officers and will be part of the assignment area of legal judgment (Article 5/c 3 of the EBL). Therefore, the regulations foreseen in Civil Procedures Law No. 6100 shall be valid in relation to an indemnification case opened in first-instance courts due to damages caused by enforcement and bankruptcy department officers with regard to the topics of “assignment,” “authorization,” “evidence,” etc., which are particulars in relation to civil judgment.
In a situation where the legal liability of enforcement and bankruptcy department officers is observed, one particular point that could be discussed in relation to the doctrine is whether the third parties that incurred damages due to faulty acts and transactions of enforcement and bankruptcy department officers shall apply to cancel the transaction that caused damages to arise and shall claim recovery of the damages incurred in accordance with the rules of legal liability as specified in Article 5 of the EBL. For this reason, in a situation where the legal responsibility of enforcement and bankruptcy department officers is required, if the party incurring such damages does not cancel the faulty transaction, then a situation of “fault of party incurring damages” shall arise to form the basis of the TCO (faute concomitante, das Selbstverschulden; Article 52 of the TCO; Article 44 of the Law of Obligations No. 818). Hence, it is accepted, without doubt in the doctrine and by decision of the Supreme Court, that in such a situation, the fault of the party incurring damages will arise. Furthermore, if the party incurring damages has fault, then the outcome outlined in the law is not applied. For this reason, in Turkish legal doctrine, different opinions are asserted about the effect of the fault of the party incurring damages on the legal liability of enforcement and bankruptcy department officers.
Firstly, the study provides general explanations about the responsibility defined in Article 5 of the EBL in relation to the legal responsibility of enforcement and bankruptcy department officers (SchKG Art. 5). Evaluations are then made regarding the impact of situations where the party incurring damages does not use the opportunity to cancel the faulty transaction in situations where enforcement and bankruptcy department officers bear legal liability. Accordingly, all opinions asserted in relation to the doctrine and approach of the Supreme Court will be expressed, and, by considering the contributory fault concept explained in Article 52 of the TCO, a conclusion about the relevance of such opinions will be formulated.