June 2017, Year:2017 Vol: 7 No: 1 (Prof.Dr. Mehmet Yüksel Armağanı)
Contents

The full text of journal

Prof.Dr. Mehmet Yüksel About

Presentation of The Dean

Memorial Posts


Çok Değerli Prof. Dr. Mehmet Yüksel Hocamın Anısına
Prof. Dr. Hasan Tahsin FENDOĞLU

[TAM METİN]

Arkadaşım Mehmet Yüksel
Prof. Dr. Ramazan ARSLAN

[TAM METİN]

Sonsuzluktan Önce Bir Gün
Prof. Dr. Gökhan ATILGAN

[TAM METİN]

Mehmet Yüksel’in Ardından
Prof. Dr. Tahir HATİPOĞLU

[TAM METİN]

Mehmet Yüksel’e Ağıt
Doç. Dr. Sedat ÇAL

[TAM METİN]

78 Kuşağı
Mustafa HAYIRLI

[TAM METİN]

Mehmet Hocamın Ardından
Mustafa Serhat KAŞIKARA

[TAM METİN]

Mehmet Yüksel’e
Seval ÖZDEMİR

[TAM METİN]

Dostum Mehmet Yüksel İçin
Mehmet Akif TUTUMLU

[TAM METİN]

Non Peer-Reviewed Articles


Extraordinary Periods and Publishing
Hasan Tahsin FENDOĞLU

ÖZET

Turkey is fighting against terrorist organizations especially coup attempt dated July 15, 2016. Tur-key’s struggle with terrorist organizations continues as much as it is national, international for-eign policy and beyond borders. The enemies of Turkey want to prevent the development of our country through terrorist organizations. Today, imperialist countries prefer to weaken the country not by giving arms, but money and support to terrorist organizations instead of fighting directly with the counterpart country. Turkey is a specially selected country in the field of maneuvering of long-standing terrorist organizations. The authority of the executive organ, in particular the margin of appreciation, expands when extraordinary situations are concerned. In these cases, fundamental rights and freedoms may be limited. Undoubtedly, publishing in ordinary times differs from publishing in extraordinary periods. Freedom of expression, protected by 10 articles in the ECHR, was specially regulated in Articles 28-32 of the 1982 Constitution. The State has duties on freedom of expression; the criteria such as modera-tion, do not touch the essence and necessity in the 13th article of the Constitution must be observed. It is not enough to limit the freedom of expression to law; it is essential that even this law has certain qualities and predictability. The text of the law restricting freedom must be clear and precise. The publications of the election period are specially designated. Article 5 of Law No. 298 states how and when to use radio and television. Elections and the media are extremely important in terms of de-mocracy. Laws on equality of opportunity are found by the Constitutional Court in accordance with the Constitution. As the person has the right to information, there is also the right to protection against harm-ful publications. There are tasks for the protection of the person against harmful publications, the written-visual media and the State. However, the personal, political, and economic interests of me-dia bosses can be background. Freedom of expression and information is essential in wars, terrorist attacks, natural disasters and other emergencies. Broadcasting services can not be pre-audited in these periods and can not be stopped as long as judicial decisions are reserved; but the Prime Minis-ter may bring a provisional publication prohibition in cases where public safety clearly requires that the public order is severely degraded. Public authorities should ensure that information flows to the media as quickly and as continuously as possible.

[TAM METİN]

The Rise of Extremism in the Global Arena
Ali ÇAĞLAR

ÖZET

The main aim of this paper is to analyze sociologically the rise of extremism in the Near and Mid-dle East which has been a serious threat to many countries across the World in recent decades, in the process of globalization. To achieve the aim, firstly, the political changes and conditions that happened in the time of Cold War period and aftermath are explanied. Secondly, the youth bulge of the countries in Near and Middle East and the roots of extremism in these geographical regions are discussed. Lastly, the role, effect and place of the Wahabi Salafism are analyzed in the occurence of recently experienced extremism. In addition, the positions, reactions and struggles of both USA and EU to extremism across the World are evaluated. It is concluded that the global powers have an im-portant contribution to the emergence and continuation of extremism.

[TAM METİN]

A Weirdness in My Head” and Literary Characters Regarding Urban Life
Onur Bilge KULA

ÖZET

The weirdness with a literary character in the novel “A Weirdness in My Head”, begins with the let-ters sent by the main character, named Mevlut, to Rayiha, Samiha’s sister. Mevlut fell in love with Semiha at first sight and assumed he was sending the letters to her. The oddity goes on when Mevlut gets married by kidnapping Rayiha instead of Samiha. Suleyman, the uncle who lusts after Samiha, is the one who caused the letters of Mevlut to be sent to Rayiha. As a result of internal migration, the bizarre human types that emerged during the process of articulation into the urban life of the shanty towns and peasants who appeared on the shores of Istanbul constitute the literary center of this novel.

[TAM METİN]

‘Yargı Etiği’ ya da Yargıda Etik: Yargı Nasıl Etik Olur?
Harun TEPE

ÖZET

Ticaret etiği’nden söz eden bir kişiye “ticaret yaparken nasıl etik olunur?” diye sorulmuş, o da “ticaret ve etik birada olmaz, insan bunlardan birini seçmeli” diye yanıtlamış. Bir anekdot olan ve ticaretle ilgili olarak da doğru olmayan bu görüş, iş yargıya gelince hiç doğru değildir. Bırakın yargı ve etiğin bir arada olamamasını, “yargı, etik olmadan yargı olamaz”, “etik olmak adil yargılamanın önkoşuludur, olmazsa olmazıdır” denebilir. Yargılamak ya da yargı vermek, yansız olmayı, yargı ko-nusu olan olay-eylem-durum ya da kişiye mümkün olduğunca nesnel bir biçimde bakabilmeyi, doğru bir değerlendirme yapabilmek için çaba göstermeyi gerektirir. Aslında tüm bunları kısaca “yargı işini amacına uygun yapmak istiyorsa etik olması gerekir” diye ifade edebiliriz. Ama yargı nasıl etik olur? Yargının etik olması, her şeyden önce yargı bileşenlerinin etik olması ve yargı sisteminin etik yar-gılamaya imkân verecek biçimde yapılanmasıyla mümkün olur. Bu bildiride yargının etik yargılama yapabilmesi için hem yargının üç bileşeni olan, avukat, savcı ve yargıçların hem de yargılama sistemi-nin nasıl olması gerektiği üzerinde durulacaktır. Yargıda etik sorunu makro ve mikro boyutlarıyla ele alınarak, etik bir yargıya giden yola işaret edilmeye çalışılacaktır.

[TAM METİN]

Electronic Surveillance of Employees Within the Scope of Personal Data Protection Act (Act No. 6698)
C. Gökhan ERBAŞ

ÖZET

In employment relationships, “supervision” is not only a right but also a duty for the employer. That being said, this practice may easily violate the p ersonal rights of the employees. For this reason, the boundaries of the “supervision right” of employers must be identified properly. For a very long time in Turkish law, this issue has been dealt within the context of international law and with due reference to the general principles of law. With the enactment of Personal Data Protection Act (Act No. 6698) on 24/3/2016, however, the whole issue now requires to take another look from a different perspective. This article primarily addresses the question of to what extent the personal rights of employees can be infringed (especially through technological means, like video/audio recordings and e-mail con-trols) by employer supervision, within the framework of newly enacted Personal Data Protection Act (Act No. 6698).

[TAM METİN]

Peer-Reviewed Articles

Justification of Unlimited ond Limited Tax Liability
Oytun CANYAŞ

ÖZET

Taxation power can be either be used domestically or it might be used abroad. Such power is used according to unlimited and limited tax liability in income based taxes. Relation with the taxpayer is based on criteria of fiscal nexus such as nationality, domicile, permanent establishment in unlimited and limited tax liability. In this study, the approach of the theories that justify the taxation power to the unlimited and limited tax liability has been discussed. In this framework, the subject has been ana-lyzed through the lenses of benefit, sacrifice, equity and through the theories of economic allegiance and neutrality. Among these theories, neutrality, economic allegiance and equity opt for using the taxation power according to unlimited and limited tax liability. Determining the preference of the said theories might contribute to the interpretation of the international legal sources.

[TAM METİN]

Public-Private Partnership Contracts in Healthcare: Expectation and Realization
Uğur EMEK

ÖZET

As in many other countries around the world, Turkey has appealed to Public Private Partnerships (PPPs) to deliver large-scale public hospital investment and services in recent years. Traditional public procurement requires the private sector to build up upfront investment, and the Ministry of Health to finance this investment, and then operate respective facility. Whereas, within PPP frame-work, the private sector should design, finance, build up and operate the facility in question over the life of long-term contract. Government pays annual service fee to private partner in return of the provision of these services. Within a PPP program developed, Turkey has forecasted to deliver health facilities with 41.000 hospital beds through this method. 20 hospitals with 30.000 beds were ten-dered out and reached commercial close. As of first half of the year 2017, only 12 out of 20 contracts have succeeded to reach financial close and 3 hospitals were inaugurated. This study attempts to appraise performance of PPP contracts in the healthcare through investigating quality of feasibility studies, degree of competition for market in tenders, and capacity of contracts to access to finance. The study concludes, PPP contracts in the healthcare have failed to bring about proposed effectiveness and efficiency.

[TAM METİN]

General Principles on Extraordinary Acquisition of Citizenship and Extraordinary Acquisition of Turkish Citizenship in the Light of Recent Amendments
Banu ŞİT KÖŞGEROĞLU

ÖZET

Turkish Citizenship Act numbered 5901 lays down a provision on extraordinary acquisition of Turk-ish citizenship in art. 12. With this provision, convenience provided to the certain persons in acquir-ing Turkish citizenship and only one condition among others of ordinary naturalisation in the said Act is required. The government has a very wide discretion in granting Turkish citizenship to the persons under the only requirement of having no obstacle with respect to national security and public order which is very far from being objective. The scope of this provision has been enlarged with a recent Act dated July 28, 2016 and numbered 6735; especially it paved the way for investors in general terms under specified requirements.

[TAM METİN]

The Popular Assemblies of the Republic Period and the Law-Making Process in Ancient Rome
Eşref KÜÇÜK

ÖZET

After the Kingdom, the legislative authority in the Republic (res publica) was used by the popular assemblies in ancient Rome. The main reason was to limit the powers of the King. Although the King (rex) did not use his legislative authority due to customs, he could rule the “laws of the King” (leges regiae). These laws were ruled without any costraints. Rome’s last King, Lucius Tarquinius Su-perbus’ Kingdom turned to tyranny, ended with the King being expelled of the City and the rise of the Republic. In this period, while two equal authorized conculs were elected for one year by the public, law (lex, plebiscitum) making autority was used by the popular assemblies. Existence and legislative process of popular assemblies formed the roots of today’s legislative actvities. Ancient Rome’s prin-ciples followed in this process still have function of guidance for today’s legislators. The scarcity of the Codifications, Romans’ opinions about law and technique part of law making process were the reasons of the legitimacy of the Roman law.

[TAM METİN]

Lawsuits for the Payment of Penalties or Penal Clauses that are Set for Refraining from Marriage are Inadmissable; Payments Initiated Cannot Be Reimbursed” An Examination of Art. 119/2 of the Turkish Civil Code
Burcu Gülseren ÖZCAN BÜYÜKTANIR, Dila OKYAR KARAOSMANOĞLU

ÖZET

Under the title “Provisions of Engagement”, with subtitle “Absence of Right to Claim”, Article 119/2 of the Turkish Civil Code No. 4721 provides that “lawsuits for the payment of penalties or penal clauses that are set for refraining from marriage are inadmissable; payments initiated cannot be reim-bursed”. Especially the last part of this provision, regarding the initiated payments reminds the prac-tice of bridewealth. With respect to the reimbursement of such payments, other legal provisions that can be considered are: Article 122 of the Turkish Civil Code regarding the gifts in engagement, Article 27 and 81 of Turkish Code of Obligations regarding the invalidity and unjust enrichment. This paper aims to examine the meaning and legislation history of Article 119/2 of Turkish Civil Code by consider-ing different opinions put forward both in literature and in court practice as well as the relationship among different legal grounds with respect to reimbursement of bridewealth payments.

[TAM METİN]

Bridges in International Law: Frontiers And Other Issues
Anıl ÇAMYAMAÇ

ÖZET

The bridges over rivers and straits have always been constructed to connect the two shores of the said geographical features, mostly without any concern to international law. However, if the shores are possessed by different states, some problems would naturally occur, such as the frontier on the bridge, or the properietorship of responsibility to manage and maintain the bridge etc. Hence, in this short essay these subjects will be dealt with.

[TAM METİN]

What Does Pragmatism Offer to Law
Sezal Çınar ÖZKAN

ÖZET

This study originates from a question posed by Richard Posner: What can pragmatism offer to law? In this regard, in consequence of analyzing various philosophers’ remarks, research of the possibility in pragmatism-law relation, so called ‘intermediate pragmatism’ by Rosenfeld, has been embarked. The purpose of this rese-arch is to achieve the pragmatist substance that can law use as basis in pragmatist philosophy. Thereby law would only be subject to the pragmatist philosophy’s boundaries, and would be independent from all other philosophies. That being said, the views that fall under pragmatism and the philosophers which are assumed pragmatist are numerous. That’s why, in order to limit the research, Posner’ pragmatism has been preferred as it has both the philosophical and legal aspects. In course of the quest of the pragmatist substance or basis in the context of Posner’s pragmatism, it has been concluded that Posner’s pragmatism is not suitable for the intermediate pragmatism possibility. However, this conclusion is only valid for Posner’s pragmatism and it does not lead to the meaning that no relation/connection between law and pragmatism can be construed.

[TAM METİN]

Considerations Regarding the Concept of “Exclusivity” and the Meaning of “Relevant Business Establishment” within the Framework of Art. 37/2 of Turkish Act on Private International and Procedural Law
Onur Can SAATCIOĞLU

ÖZET

In the field of private international law, choice of law problems related to claims arising out of un-fair competition acts are mostly dealt with one of two different approaches. Applicable law can be ascertained by either deeming the whole issue as a separate tort of unfair competition, or by simply qualifying it as a general tort, having no particular characteristics. Traces of both approaches can easily be seen in normative grounds. However, one can safely assume that, modern day continental private international law systems have a tendency of leaning towards the first approach. Turkish private international law is one such example. The main act containing the relevant conflicts rules has not only stipulated a special article (Art.37) about unfair competition claims, but it also diversified the provisions within that single article. Accordingly, Turkish law accepts a distinction between the acts affecting the market in general (Par.1), and the ones solely affec-ting the interests of a single competitor (Par.2). This work aims to take a closer look into the exact functioning of the relevant provision brought by the second paragraph. The discussions will primarily be held related to the following questions: 1-What is the true meaning of “exclusivity” in cases, where only the targeted compe-titor presumed to have exclusively affected by the act, but not the market itself? 2-Is it possible to conceive a criterion that can be used while interpreting and eventually deciding on which business establishment was actually affected by the harmful act?

[TAM METİN]

Financial Liability of Public Personnel in Turkish Administrative Law
Çağdaş ARTANTAŞ

ÖZET

The pecuniary liability of public servants has been a long-lasting issue for scholarly and jurispruden-tial disputes in Turkey since 1960’s. Disputes broadly concentrated on topics suchlike; the analysis of the personality of the fault committed by public officials, the judicial remedies to apply in case of damages related to the acts of public personnel and designation of the defendant, recourse to the public personnel by the State for pecuniary damages and obligatory character of this remedy and constitutionality of some articles of the statutes governing the legal regime of financial liability of public officials. In this work, these topics will be referred to and examined with regard to the recent status of Turkish legislation, jurisprudence and legal doctrine in order to offer an insight to the legal regime governing the pecuniary liability of public officials in Turkey.

[TAM METİN]

The Piracy in International Law and Combating Piracy Off Coast Somalia
Tacettin ÇALIK

ÖZET

Throughout the history, the piracy has emerged in different shapes. In the first stage of the history, pirates generally had been attacking with own ships to another ships and confiscating goods at ship after killing all crews. Then the pirates war against the enemy states by the means of entering nationality of a state; in peace time they continued their piracy activities against the enemy states’ ships. In this way, the persons who operates by the letter of marque was called as privateer. In the last stage, with the Paris Declaration in 1815, using pirates in war by the state have been prohibited pirates. From this date, the states have abondoned using piracy in war; but the contemporary meaning of the piracy activities have existed. Around 90 per cent part of world trade is carried by sea. In particular, the Gulf of Aden, one of the main routes of maritime transportation, covers approximately 20 per cent of commercial ship traffic. Starting in the early 1990s and intensifying in the 2000s the piracy activities off the coast of Somalia, most affected the passing ships and maritime trade in the region. The Somalian pirates who attack passing throughout this route commercial ships and carrying the humanitarian aids to Somalia ships, has begun to take hostage the crew and passengers and ask for in high amounts of ransom in exchange for release of the crew and ships from ship owners and states. This has urged the international community to take measures in this regard. In particular, the UN Security Council has taken the decision to initiate fight against Somalian pirates. With these decisions, the combatting piracy has become a common problem for the entire world.

[TAM METİN]

Health Team Worker Contract in the Light of Turkish Football Federation Health Team Organisation and Operation Instructions
Hakkı Mert DOĞU

ÖZET

Sport, sports law and sports law contracts have been improving in recent years. This development directly affects sports subjects. The health care team employee is one of the important subjects of the sports law. In this article, the contract of the health care team employees are examined in detail.

[TAM METİN]

Law, Evolution and Pragma: A Consideration on Pragmatical Thoughts of Holmes and Cardozo
Muzaffer DÜLGER

ÖZET

Law, Evolution and Pragma: A Consideration on Pragmatical Thoughts of Holmes and Cardozo In this article we will try to illustrate the pragmatist nature of American jurisprudence in the the last period of nineteenth century and the early period of twentieth century. This historical stage in American jurisprudential history was shaped by monopolist ca-pitalism and entellectual neccecities for a new social philosophy for the new social and economical circumstances in the United States. This was different from natural law philosophy compatible with the founder political philosophy of United States, and had anti-Blackstonian character. At this point, firstly, we encounter with Oliver Wendell Hol-mes Jr.’s Benthamite, predictive, fallibilist, empricist and pragmatical philosophy of law in the context of generel theory of Common Law; and soon after with Benjamin Nathan Cardozo’s pragmatical and sociological philosophy of adjudication in his book, “The Nature of Judicial Process”.

[TAM METİN]

Comparative Democracy Models And in Relation with Systems of Government
Mustafa GÜÇYETMEZ

ÖZET

Although “ governing by people” takes its place at the bottom of democracy term, while societies developes, it has some additions and comes until today. Meanwhile there are various democracy definitions in the scope of the doctrine, different type of democracy models and theories, depending on societies and states has come out. The community structures and governing systems of states has always formalised their de-mocracies. Therefore communities constantly searched the most ideal government and democracy models for themselves. The work in this paper is presented the democracy term and its models comperatively and among these models, Westminster and pluralist democracies emphasized. Detailing the communities structures and systems of govern- ment, the relationship between democracy and government systems analysed.

[TAM METİN]

Post-Modernism and Law
Mustafa Serhat KAŞIKARA, Seher KAŞIKARA

ÖZET

In Loving Memory of the Honourable Prof. Dr. Mehmet YÜKSEL…
It is said that the discussions of the post-modernist discourse, which began to emerge towards the end of the 1960s, have gained strength, within the scope of critics especially directed to modern society and mind. This discourse, which was firstly introduced to describe the arts in France and the recent developments in the field of architecture in the United States, has had an increasing coverage in other social sciences. According to some, it is a political ideology, a rebellion against the past, a dimension that is open to irregularity or a manifestly ill-founded claim to the others… “Post-mod-ernism”, which is considered to have originated between the 1970s and the 1990s, has left its mark on the law as much as the global agenda. With regard to its popularity, it should be noted that post- modernism is not a fully defined concept. In this study, it will be aimed to touch on the discourse of post-modernism and its solution pro-posal, and the current trend in question will be examined on its reflections on law and interpretations on legal practice.

[TAM METİN]

The Scope and Limits of an Activist Judge Practice: The Story of Judge Fiona
Nadire ÖZDEMİR

ÖZET

David Luban emphasizes a lawyer practice that requires lawyers to become morally activists. A lawyer who sees her client’s immoral or illegal purpose should aim to convince her client to act morally and legally. A lawyer should always be on the side of justice primarily. Could moral activism be a practice for judges also? Unlike lawyers, judges are impartial. What means do impartial judges have for moral activist practice? In this article, I will discuss whether the theory of moral activism is possible for judges. I will use Ioanna Kuçuradi, Gulriz Uygur and Ronald Dworkin’s approaches in order to discuss the issue with the example of Judge Fiona in McEwan’s The Children Act book.

[TAM METİN]

An Essay on Violence Against Women - Domestic Violence and International Legal Documents Concerning This Issue
Gizem ÖZKAN

ÖZET

Violence against women and especially domestic violence against women is the most ignored hu-man rights violation by legal systems. In the recent period, however, some significant changes have been made to tackle with the violence against women on national and international levels and states have adopted efficient policies and enacted important legislations on this issue. In spite of this progress, the inadequency of domestic legislations and the problems of implementation of existing regulations indicate that more efficient legal ways which must be in compliance with international standards in international legal documents should be adopted in order to prevent violence against women and to protect the victims and a widespread belief in this necessity has arisen lately. The first part of this study aims to briefly explore the concepts of violence against women, domestic violence against women, and the types of violence. In the second part, international legal documents on vio- lence against women will be analysed in detail and our estimation on this issue will be presented.

[TAM METİN]

An Essay on the Relationship of Social Darwinism, Nazism and Law
Çağatay ŞAHİN

ÖZET

This study aims to show the relationship between fascism and Social Darwinism, spe-cifically in National Socialism and its legal variations. After Darwin’s masterpiece “Origin of the Species” published in 1859, ideas on evolution was spread and improved by his successors all over the world with the soical variants and these thoughts affected the ideologies in theory and application. Before the publishing of “Origin of the Spe-cies”, Spencer, one of the most remarkable philosophers of Social Darwinism and his thought “survival of the fittest” influenced especially the liberal ideology, anarchism and fascism. In this respect, the relationship between fascism and biology and gene-tics is an important point to be emphasized while examining the Social Darwinism and fascism relationship. Especially after the fascist parties came to power in Germany and Italy, the legitimacy field of Social Darwinism expanded and accordingly in legal area, the Nuremberg Laws (Nürnberger Gesetze) were enacted by the Nazis.

[TAM METİN]