ABSTRACT

It is a well-known and much-discussed issue that the positivist legal thought which is occupying a serious place in the legal education today is based upon the modern thought which has been shaped by the philosophy of enlightenment and the insight of modern science. The insight of modern science and the approach of philosophical positivism which are the basis of the legal positivism, see the phenomenon that are not the subject of observation and experiment as metaphysical subjects which are excluded from the scientific area. Accordingly only the phenomenon which have a concrete existence and therefore are the object of observation could be made the subject of inquiry. This approach has affected the legal science by shaping a positivist legal science whichis analyzing the legal rules, concepts and institutions in a definite legal system. In the scope of positivist approach where it considers law as the collection of rules and sanctions which have the power of enforcement and legislated by a sovereign, it is natural that the existence of an understanding of law as a social phenomenon and as a sub system of the social system would not be expected. Similarly, it could also not be in question to construct the legal science by its mutual relationship and interaction with the other science fields which are trying to understand the social reality. However, the positivist approach which is mainly the basis of legal education today is being criticized within the fields of philosophy of science and social theory. The people who are criticizing the tendencies of excluding law with its concepts, rules and institutions from its socio-cultural reality and the world of values, are placing law in its humanitarian and cultural scope and are emphasizing the interaction between law and socio-cultural organisms. By doing this they are asserting a different understanding by including the world of values and sense into their analysis in law field.

ABSTRACT

The taxation is a common practice of the states seen throughout history. The taxes constitute an important income for the states. The personal and commercial data of the tax payers is derived and preserved during this taxation activity. It can cause damages or call forth danger of damage financially and personally for the tax payer if this information is used out of its purpose or made public. On the other hand, the unlawful use or declaration of this data, which has to be kept as a secret, shakes the public confidence to the tax administration. For these reasons, this kind of acts which breach the rights to privacy and to secrecy of private life should be penalized in order to maintain the rights of the tax payers and the confidence to the tax administration and its officers. In Turkish law system, the breach of tax privacy offence is formulated as a fiscal offence in Turkish Tax Procedure Code (ar. 362) and it refers to Turkish Penal Code (ar. 239) for the sanction. In our study, this offence was examined within general theory of crime and some assessments were made regarding problematic issues.

ABSTRACT

There are various legal problems encountered because of the judicial principle envisaging that in case of an award annulling an administrative action against which a suit has been filed for annulation, such administrative action would be null and void since its inception date and that the ex ante legal status prior to such inception date would be taking its place. The following are the foremost issues concerned; when a regulatory act is annulled, what is the legal status of an administrative action of individual character that has been taken based on such regulatory act, and whether an earlier regulatory act which had been abolished by the same regulatory act annulled would be legally in place automatically after such annulation. Furthermore, on top of these issues the following should also be added: individual administrative actions together with administrative actions that can be separated from tender contracts and annulment awards regarding administrative contracts. All of these concerns stem from the relative incoherence between the principles of legality for administrative actions and legal stability and security, both of which are deemed as the prerequisites of rule of law in a legal system, and each having no privilege over the other. In search of a solution to these concerns, the Conseil d’État has reached at a conclusion by softening the effects and legal outcomes that had been traditionally acknowledged for and attributed to annulment awards.

ABSTRACT

The Constitutional Court rendered that the provisions of article 65/a and b of Law no. 2863 (Cultural and Natural Heritage Protection Act) were unconstitutional and thus should be annulled, and that the decision of annulment would come into force one year from the date of publication of the decision in the Official Gazette (on 13.10.2013). The constitutional provision of “Annulment decisions cannot be applied retroactively” contradicts one of the fundamental principles of law “No one shall be punished for any act which does not constitute a criminal offence under the law in force at the time committed” when it comes to the annulment of a criminal law provision. When an annulment decision concerning a criminal provision in favor of the offender is at stake, there is no doubt that in addition to the ‘legal certainty’ – which is aimed at with the principle of ‘non-retroac tivity of annulment decisions’ – principle of ‘legality of offenses and penalties’ is important to achieve the respect for the rule of law and fundamental rights and freedoms. When criminal law regime is taken as a system of values, it is indisputable that the principle of legality is an indispensable element of this system. Qualifying the principle of legality – the origins of which date back to Magna Carta Libertatum of 1215 – as the corner stone of assurance function of criminal law and ensuring compliance with this principle are among main functions of the rule of law. In this respect, when there is a possibility of implementing criminal law sanctions, application of the ‘principle of legality’ should be preferred over ‘legal certainty’ by observing justice and equity, and the annulment decision in favor of the offender should be applied immediately.

ABSTRACT

Democracy, as a political regime, is based on multiplicity of racial, cultural, intellectual or religious groups which form today’s modern society. In this regime, the establishment and overriding purpose of democratic institutions is based on strengthened pluralist individuality in their own manner. On the one hand, all democratic institutions accept and treat all individuals and groups in an equal manner, without any discrimination. National institutions based on responsive, transparent, accountable, participatory and collaborative processes and networks are well designed for enabling institutions and persons to cooperate with each other and live together in peace. On the other hand, without any exception every person has been able to enjoy their rights and freedoms that cannot be seen as a matter of compromise, negotiation or favour by any public authority in any manner. In this sense, democracy has become a universal inspiration to almost all societies today, however, in multiple level of effectiveness. In this article, greater attention has been paid to the prerequisites for pluralist democracy as an essential part of the European public order to ensure real democracy. The issue is of particular importance to Turkey that constitutes ethnic and religious diversity to a great extent.

ABSTRACT

The subject of this study is to examine the prime minister of Turkey under the light of the provisions of the 1982 Constitution. Even though the 1982 Constitution aimed to strenghten the President of the Republic, it also gives very important duties and responsibilities to the Prime Minister. As we look our political history, we can see the expandation of the Prime Minister’s significance in the system, especially in the lack of coalition government. This article consists of five main parts as the appointment, duties and authority, termination of the duty, responsibility and the representation of the prime minister. The topics are examined in general terms and historical examples are emphasised when necessary.

ABSTRACT

Abandonment of an act is an exculpatory defence adoption which is a political choice aimed to urge the actor to quit the criminalized activity. Defendant, in order to benefit from this defence shall abandon the act by her/his own free will and also prevent its outcomes. Abandonment of crimes commited by a group of actors is subject to different provisions where an actor might benefit from such defence even if the act has been completed. For crimes whose nature do not allow application of provisions regarding attempt, abandonment defence is also not avaliable

ABSTRACT

Norm conflicts in legal theory is a subject which has been intensively studied. In this regard, authors like KELSEN, ROSS, RAZ, DWORKIN, MUNZER, ELHAG/BREUKER/BROUWER and PECZENIK have asserted different ideas on determination and classification of norm conflicts. The aforementioned ideas scrutinize the conflict problem by abstract classifications or abbreviate it to a specific logic like the deontic logic. Therefore, none of these approaches has been preferred in analyzing the conflict between the tax norms. Instead of this, a new criterion has been suggested for the determination of norm conflict and a new classification has been made pursuant to this new criterion. In this regard, norm conflict has been described as to mean where the application of a norm violates another norm and a classification which is based on the similarities between the circumstances of two independent applicable rules has been revealed. A conflict between the two norms of which behavioral circumstances are the same is a logical conflict. Logical conflicts are separated into two as total and partial norm conflicts basing upon the differences between the legal consequence element and the other circumstances. A conflict between the two norms which have different behavioral circumstances is a “real conflict”. Procedural tax norms take part in many codes like the Administrative Procedural Law and Procedural Administrative Tax Law and the Law on the Collection Procedure of Public Claims. In this study, the conflicts between the procedural tax norms have been qualified as “partial norm conflicts”. In this regard, many of the conflicts between the aforementioned norms have its source from the incompatibilities between the “other circumstances” of the independent norm in art. 2/1-a of Administrative Procedural Law. A real conflict between the procedural tax norms has not been encountered.

ABSTRACT

Police has emerged in the process of development of the modern state. For this reason police is one of the characteristics of the modern state. The social nature of policing can be determined by examining the needs that police met and the gaps that police filled. For this purpose, it will be useful to look at the period which police and gendarmerie emerged. While enforcing law, police can violate it as well. Other than personal violations, in some cases these violations can be general. Political and legal sociologists propose two main reasons for this contradiction: involvement in politics and institutional alienation. Certain thinkers evaluate these situations as deficiencies and misconducts of policing. But some thinkers argue that these situations are expected results of the nature of policing.

ABSTRACT

Equitable estoppel is one of the most important doctrines in the Common Law Jurisdictions. The concept of estoppel which can be seen as one of the crucial principles of the public international law and the international commercial law, is aimed to protect one party from being harmed as a result of the other party’s contradictory deeds, statements or promises. Although the Civil Law does not contain an estoppel doctrine, it contains several basic principles that serve to the same goal which can be summarized as to achieve justice through equity. This study examines whether the doctrine of equitable estoppel can be found compatible with the CISG (The United Nations Convention on Contracts for the International Sale of Goods) which targets to facilitate international trade and to create uniformity in its application.