ABSTRACT

The name and subject of this article is changing the content of rental agreements on immovable properties by implicit declaration of intent. This study was prepared by comparing the related provisions of Turkish Code of Obligations, Law Nr. 6098, Law of Obligations, Law Nr. 818 and the Law on Rental Agreements on Immovable Properties, Law Nr. 6570. In this context, first of all, the concept of implicit declaration of intent was explained. Next, the content of contracts in general, and specifically the content of rental agreements was explained. Then, groups of events which can be deemed changing the content of rental agreements by implicit declaration of intent and later those which can not be were explained. The subject matter of this study was handled in the light of Turkish Code of Obligations, Law Nr. 6098 (The New Code), Law of Obligations, Law Nr. 818 (The Ex-code) and the Law on Rental Agreements on Immovable Properties, Law Nr. 6570 (which will cease to have effect).

ABSTRACT

Court fees should not be in the amount and nature that they prevent the freedom of seeking your rights and justice. In this regard, the Constitutional Court has cancelled the provision of the Law on Fees which states that the "judicial decree shall not be given to the individual concerned until the fees for the decision and the judicial decree are paid" on grounds that this provision is in violation of the right to seek justice. However, on the other hand it has denied the request to cancel the provision of article 32 of the same law which states that "the ensuing formalities shall not be performed until the fees for the trial have been paid". The "ensuing formalities" contained in this article have been interpreted in different ways in application and consequently has led to certain hesitations. Pursuant to this "the fact that the balance of the decision and judicial decree is not paid shall not preclude the notification, implementation of the decision, and application for legal measures" was added to article 28 of the Law on Fees. However, certain courts do not issue judicial decrees to the individual concerned without paying the decision and judicial decree fee, and some offices of lien refuse to take action on the decision, in spite of the amendment to the law. This situation is in clear violation of the law. In this study we shall examine some of the problems pertaining to the court fees and the decision of the Constitutional court on this matter.

ABSTRACT

Rules of documentary proof brought under the Code of Civil Procedure No. 1086 are also existent in the new Code No. 6100. However some amendments are made regarding the exceptions of said rules. The most important one of these amendments is concerning commencement of proof. In order to be applied as commencement of proof, the documents need not be written anymore. All instruments suitable for evidential purposes and considered under the document definition set forth in the Code, may be used as commencement of proof provided that they carry the other two conditions. In this context, electronic documents may also be applied as commencement of proof. According to the Code, evidentiary agreements that eliminate or greatly curtail a party's right to produce evidence are deemed invalid. Recent interpretations by the Court of Appeals that may create new exceptions to the rules documentary proof are not included in the making of the new Code. Number of cases requiring documentary proof may be decreased significantly since the monetary limit of the documentary rule is increased over fourfold the current limit.

ABSTRACT

The aim of the "European Convention for the Protection of Human Rights and Fundamental Freedoms" is to establish a protection system which ends the monopoly of the States on human rights by transferring them into the competence of supranational organizations. Thus, the Convention, unlike other traditional international treaties, provides a common system of guarantee by means of a well-established control mechanism. On the basis of the case law arising from such a mechanism, the European Court of Human Rights has strongly stated that the Convention is "a constitutional instrument of European public order" in the case of Loizidou v. Turkey on 23 March 1995. By using the term "constitutional", the Court refers to the effectiveness of the fundamental rules to which the contracting States are subject, whereas it does not define the concept of "European public order". Even before the above-mentioned decision of the Court, some authors, in order to emphasize the difference of the Convention to other international agreements and human rights documents, have already qualified it as a legal text of which the aim is to establish the "public order of liberal democracies". In the administrative law, the concept of European public order is an important instrument providing the judge of the criteria to be used in concretizing the public order. The Article 90 of the 1982 Constitution amended in 2004, has ended the debate regarding the application of the European public order in the system of the hierarchy of norms. The judge shall apply the provisions of the Convention according to that Article stating that "in the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail".

ABSTRACT

This article deals with the official historiography process handled in Early Republican Period and the history studies called as "Turkish History Thesis". In this context, the article consists of two main sections. Primarily, the subjects about the resources, proposing and development processes of the Turkish History Thesis will be reviewed. Right after, narrative of the thesis is going to be analyzed by the consideration of general characteristics of official historiography. Also a variety of examples about construction and shrining of Turkishness will be investigated. In the article, the aims wanted to be approach by historic narrative of the Turkish Historical Thesis (by the results of ideological, political and social) is more important than making a discussion about scholarly accuracy of historical narrative which manifested by the thesis. Consequently, the ideological qualification of historiography of the Early Republican Period and the political purposes aimed to be realized by this historiography process will constitute the center of gravity of the assessments. So indeed, this historiography project which supported by the administrative staffs of the Republic is also became one of the basic components on the construction of the new nation state. Through the agency of the thesis, the founders, on one hand attempted to erase the memories about the Ottoman and Islamic identities, and on the other hand, wanted to establish a nationalist citizen consciousness using the shrining of Turkishness notion.

ABSTRACT

A contract with a foreign element is in relation with more than one country’s law. In such a situation, it is required to determine which law will be applicable to that contract. This determination can be made by parties’ choice in a subjective way or if parties did not make such a choice, it can objectively be determined by the forum. In accordance with subjective choice of law, parties may make an express choice of law. Or an implicit choice of law may be assumed when a genuine will of the parties can with a reasonable degree of certainty be deducted from the contract and the surrounding circumstances. Issues such as whether parties are entitled to make express choice of law or whether implied choice of law is possible and if it is possible its conditions and also objective determination of applicable law have been regulated under Rome I Regulation on the Law Applicable to Contractual Obligations in the European Union Law and in the Code on Private International and Procedural Law (MÖHUK) in Turkish Law. According to Article 3/1 of Rome I, implied choice of law has been accepted by stating that "The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case." With regard to MÖHUK, as distinct from former MÖHUK, party autonomy has been emphasized and in accordance with article 24/1/2, implied choice of law has been enabled under the conditions that "it has to be deducted from the provisions of the contract and the circumstances of the case without any uncertainty."