What is precautionary measure?

One of the reflections of the complexity of social life and human relations in the field of law is that it becomes difficult to resolve disputes in a short time. In order to eliminate these drawbacks, there has been a need to temporarily secure the legal interests of individuals without waiting for the dispute to end. This need has created temporary legal protection methods. Interim injunction is the most important of the temporary legal protections.

As a matter of fact, the provisional injunction institution regulated in the first part of the tenth part of Civil Code No. 6100 is described as "temporary legal protections" in the title of Article 389 and in the first paragraph of the same article it is stated that "in cases where there is concern that obtaining the right will become significantly difficult or completely impossible due to a change that may occur in the current situation, or that a harm or serious damage will arise due to delay, the issue of dispute will be resolved." After specifying the conditions such as "precautionary injunction decision may be made", the following articles explain the procedure and procedure to be followed regarding other issues such as the request on this issue, the decision to be made and the issues it will include, guarantee, implementation of the decision.

Injunction doctrine is defined as "...a temporary, broad or limited legal protection against damages that may occur in the legal situation of the plaintiff or the defendant (regarding the subject of the case) during the trial that continues until the final verdict." It is described as. (Civil Procedure Law 12th Edition P. 714- Prof. Dr. Hakan Pekcanıtez, Prof. Dr. Oğuz Atalay, Prof. Dr. Muhammet Özekes)

As can be understood from the aforementioned definition, in addition to its other functions, the interim measure is a temporary legal protection that prevents the emergence of new disputes on the subject matter of the case during the continuation of the case and until the finalization of the verdict.

Types of Precautionary Measures

There are three types of precautionary measures. These are precautionary measures "for collateral purposes", "for enforcement purposes" and "for regulatory purposes".

Measures for collateral purposes are the basic form of precautionary measures. Any measure that will eliminate the inconvenience or prevent the damage may be decided, such as preserving the property or right subject to the measure, or entrusting it to a trustee, or doing or not doing something.

Measures for performance purposes; are intended to temporarily fulfill requests such as the temporary fulfillment of the right that is the subject of the dispute, the provisional granting of something by the court, the performance or non-performance of an action.

Regulatory measures are; It aims to temporarily regulate the controversial legal relationship. Here, rather than the fulfillment of a future act, it is a matter of making a temporary arrangement to preserve the legal peace regarding the existing legal relationship.

PRECAUTIONARY MEASUREMENT CONDITIONS

As we stated above, the conditions for interim measures are listed in Article 389 of the Law. The following explanations are included in the justification of the article:

"Situations in which there is concern that obtaining the right will become significantly difficult or completely impossible due to a change that may occur in the current situation, or that there will be harm in its delay or that serious damage will occur, have been accepted as a general reason and condition for precautionary measures. It will be possible for the court to decide on measures that will eliminate this drawback or damage, after the examination, taking into account the rules of examination and proof required by the interim measure trial.

The main thing in an interim measure is that there is a right that is the basis for the interim measure and the emergence of a reason for the interim measure. These constitute the basic conditions for interim measures. These two issues are included in the article, the right to interim measures and especially the reason for interim measures are stated in general.

Although it is stated in the second paragraph of the article that the issues specified in the first paragraph will also be applied in terms of interim measures in non-contentious jurisdiction; It was pointed out that the nature of non-contentious judicial affairs should be taken into consideration."

REQUEST FOR PRECAUTIONARY MEASURES - PRECAUTIONARY MEASURE PROCEDURE

Who Decides on Interim Measures?

HMK's 390/1. The article regulates the time to request interim measures and the competent court. Accordingly; Interim injunction, before a lawsuit is filed, from the court having jurisdiction and authority over the merits; After the lawsuit is filed, it can only be requested from the court where the main case is heard. As stated in the justification of the article, with this provision, in order to prevent the request for interim measures from unrelated courts and in accordance with the nature of the temporary legal protections, it is regulated that the provisional measures can be requested from the court having jurisdiction and jurisdiction over the case before the lawsuit is filed, and from the court where the main case is heard after the lawsuit is filed. Thus, the situation regarding authority and duty in interim measures, which was unclear and open to abuse, has been turned into a clear and unambiguous situation.

The request for interim measures may also be requested from the regional court of justice in cases at the appeal stage.

It should not be forgotten that; The judge can only issue an interim injunction upon request. It is impossible for it to rule on interim measures on its own. Finally, in the decision of the 11th Chamber of the Supreme Court of Appeals numbered 2012/2224 K.; "The request is related to the objection to the provisional injunction decision. In the case, which includes the request for annulment of the general assembly decision filed by the plaintiff party, an interim injunction decision was given to prevent the transfer of the immovable property belonging to the defendant company and the transfer of real and personal rights on it. The granting of an interim injunction is conditional on the condition of a request on this issue, and it is understood that there is no clarity regarding the request for injunction in the petition. Issuing an ex officio injunction decision is against the law." It is stated as follows.

Can Interim Injunction Decision Be Given Without a Hearing?

HMK's 390/2. According to the article; "In cases where it is necessary to immediately protect the rights of the requester, the judge may decide on measures without hearing the other party."

As we stated above, interim injunction is a temporary legal protection. For this reason, it is necessary to mention the differences between lawsuits and protection measures. With the following statements in the justification of Article 390, the difference between litigation and legal protections is mentioned and it is explained that an interim injunction decision will be given without a hearing. Accordingly:

"One of the main features that distinguish temporary legal protections from litigation is the feature of the right to be heard. The right to be heard is a fundamental judicial right that cannot be waived. However, due to the need to grant temporary legal protections urgently and sometimes a result that will eliminate its effect when the other party is notified, it has been accepted that interim measures can be decided without hearing the other party. Precautionary measures can be decided without hearing the other party." This does not mean that the right to be heard is completely waived. In a case, both parties are heard first and then a decision is made. However, in temporary legal protections and in this context, a decision can be made without hearing the other party. However, the right to be heard is realized later, with the opportunity to object to the other party. In this case, the right to be heard is not waived, but is only subject to a temporary legal protection decision. In practice, a temporary legal protection order is often given without hearing the other party. However, the judge must decide whether to listen to the other party or not, depending on the nature of the situation. If making a decision without hearing the other party will cause greater harm or if hearing the other party will not endanger the purpose of the precautionary measure, then not listening to the other party means not ensuring his/her legal right to be heard properly.

Again, the following expressions were used in the justification of the article:

"The judge must be very meticulous when using the opportunity provided in the second paragraph of this article and must carefully examine the balance of interests between the parties and the nature of the event. Temporary legal protections can be abused for purposes other than their intended purpose, and it is not possible for the court to make a sound and correct decision about a request for temporary legal protection for which the concrete reason is not stated. Sometimes, judicial bodies decide on a measure requested in general terms in a general way, even though the addressee of the measure is actually right, to prevent a greater harm at that time. "For this reason, the court has to choose the way to reach an agreement with the other party. This situation results in unfair pressure on the other party by using the judicial bodies."

Approximate Proof Requirement in Making an Interim Measure Decision

HMK's 390/3. It is stated in the article that the person requesting injunction must clearly state in his petition the reason and type of precautionary measure he relies on and that he must approximately prove his rightness in terms of the merits of the case.

According to the relevant article, the party requesting measures must first state the following in its petition:

1-The existence of the right or property that needs to be protected,

2-The place where this right or property is located,

3-The reason for the precautionary measure,

4-Type of precautionary measure.

The second result of the article is this:

The party requesting interim measures must prove his/her rightness. The standard of proof is determined according to the "approximate proof" rule. This issue constitutes another difference between litigation and temporary legal protection. As it is known, full proof is required in cases. However, the legislator found approximate proof sufficient in terms of precautionary measures. In the application of the rule of approximate proof, the judge accepts the accuracy of the claim as a predominant probability, but should also consider the possibility that the opposite is possible, even if it is a slim possibility. The issues we are trying to explain are stated in the justification of the article as follows: "Another feature that distinguishes the provisional legal protection trial from the main legal protection is in terms of the measure of proof. If it is not clearly foreseen in the law or the nature of the case does not require it, in a case (in a normal trial) full proof is sought, not approximate proof. Because, the judge, the current rules of proof and evidence For example, if one of the parties in a claim case relies on the existence of a contract, the judge must have a full conviction about the existence of this contract (within the framework of the current burden of proof and rules of evidence). In other words, a weak or strong probability is not sufficient to make a decision. If full conviction about the existence of the contract is not achieved, then a decision must be made against the party on whom the burden of proof falls. Due to the nature of the work and the nature of the event, the judge has the opportunity to reduce the standard of proof by stating this situation. Within the framework of this reduced standard of proof, a highly probable, approximate opinion is considered sufficient for a decision.

However, being satisfied with approximate proof does not mean that proof will not be sought or that the rules of proof will be completely violated. No matter how convincingly a party puts its claim before the court, it is just a claim. In order for the alleged fact to be accepted as fixed, that is, true, the party who has the burden of proof must prove it within the evidence system in the law and within the framework of the standard of proof required by the law. In cases where full proof is sought, this criterion must be set forth without hesitation.

In the case of approximate proof, the judge accepts that the claim is mostly true, but does not ignore the possibility that the opposite is possible, even if it is a weak possibility. For this reason, when deciding on temporary legal protections in general, and provisional injunctions and provisional seizures in particular, it is envisaged to obtain a guarantee from the requester, taking into account the possibility of being unfair. In temporary legal protections, approximate proof has sometimes been deemed sufficient due to reasons such as not listening to the other party and not having enough time to examine all the evidence in detail. In this context, although no innovation has been introduced in terms of the measure of proof, the expression accepted in the doctrine has been included in the Draft by using the concept of "approximate proof", and it has also been stated that full proof is not required and it is intended to emphasize that a simple claim is not sufficient."

Finally, it should be noted that the Supreme Court of Appeals is of the opinion that an interim injunction cannot be issued in cases where the existence and amount of the receivable requires trial. A request for interim measures based on a lawsuit for unfair dismissal was rejected on the following grounds:

"The request relates to the request for an interim injunction on the money deposited in the enforcement file, without any guarantee or with a guarantee that the court deems appropriate, to ensure that the money deposited in the enforcement file is not paid to the defendant until the trial is concluded. In the case subject to appeal, the existence and amount of the claim claimed by the plaintiff lawyer can only be determined at the end of the trial. In this respect, it cannot be said that the conditions for issuing an interim injunction have been met. Considering this aspect mentioned by the court, it should have been decided to reject the request for interim measures, but the decision to accept it is against the procedure and the law." Y13HD. 2013/30414 K.

The Precautionary Injunction Decision Should Be Justified

Article 391 of the HMK is regulated as follows.

The court may decide on any measure that will eliminate the inconvenience or prevent the damage, such as preserving the property or right subject to the measure, or entrusting it to a trustee, or doing or not doing something. In the provisional injunction decision;

a) The name, surname and residence of the person requesting interim measures, his/her legal representative and attorney, if any, and the opposing party, and the identity number of the Republic of Turkey of the requester,

b) On what clear and concrete basis and evidence is the measure based,

c) What and what kind of measure has been decided, without any room for hesitation,

ç) The amount and type of guarantee that the requester will provide is written.

As stated in the Supreme Court decision we share below, the judge must justify the interim injunction decision.

"Although the legislator has left a wide margin of appreciation to the judge who will decide on the provisional injunction, the judge must carefully examine in each concrete case whether the conditions for the provisional measure have been met, and must state in the decision for which legal reason and according to which concrete situation he made the decision for the provisional measure. If the conditions for the provisional measure are not present and cannot be proven to the extent stipulated by the Law, the request for the provisional measure should be rejected." Y15HD. 2012/5172 K."

How Long Does the Interim Injunction Decision Last?

If there are no reasons that cancel the measure, which we will explain below, the preliminary injunction decision continues to maintain its effect until the decision becomes final. Applying for legal remedies does not remove the measure. As an exception, it should be noted that the first instance court may also decide to lift the measure along with the verdict.

PROVIDING GUARANTEE FOR PRECAUTIONARY MEASURES

We have stated that the rule of approximate proof is required in order to issue an interim injunction decision. However, it was thought that the drawbacks of this rule should be prevented. For this reason, the guarantee requirement is included in Article 391 of the Law.

Accordingly; The person requesting interim injunction must provide a guarantee against the possible damages that the other party and third parties may suffer due to this, in case he is proven wrong. This rate is generally determined as 15%. A letter of guarantee can be submitted as collateral.

Unsecured Precautionary Measure

The legislator has also regulated that in some cases, an unsecured provisional lien may be issued. As stated in the justification of the draft law; If the request of the person requesting the measure is based on an official document or definitive evidence, the court may exempt the party from providing this guarantee. Because the probability of anyone who has such strong evidence to be wrong in taking the precaution is very low. For example, requiring the party who has a judgment as evidence to provide collateral would damage the balance of interests. Here, the judge is given a discretionary right depending on the nature and content of the document.

According to the article, there is no guarantee for those who benefit from legal aid.

An example Supreme Court decision is shared below.

"The plaintiff requested the renewal of the trial regarding the annulment and registration of the part added to the defendants' parcel within the framework of the annulment decision of the administrative court, and the elimination of the partnership by reinstatement, and the precautionary suspension of the sale in the sales file. The court decided to reject the case on procedural grounds, since the guarantee, which is a condition for the lawsuit, was not deposited in the renewal of the trial. If the request for interim injunction is based on an official document, other definitive evidence, or if the situation and conditions require it, the guarantee will not be taken by explaining the reason. "Since the request was made based on the approval decision of the Administrative Court and the Council of State, the plaintiff is not obliged to provide collateral." Y14HD. 2014/11071 K.

Return of Collateral

The guarantee will be refunded if a compensation lawsuit is not filed within one month from the finalization of the judgment regarding the main case or the lifting of the interim injunction decision.

OBJECTION TO INJUNCTIONAL MEASURE DECISION

Right to Object

Objection against the interim injunction decision is regulated in Article 394 of the Civil Code.

In the first paragraph of the article, it is stated that the other party may object to the interim injunction decision given without hearing the other party. As we mentioned above, due to the nature of the interim injunction decision, it can also be given in the absence of the parties. However, the other party who was not heard was given the right to object in order to ensure his/her legal right to be heard.

In the second paragraph of the article, the duration of the objection to the measure and the reasons for the objection are shown, and in particular, parallelism with the provisional lien is provided. Accordingly; If the other party is present during the implementation of the precautionary measure, from the implementation of the measure; If he is not present, he may object to the court that made the decision, regarding the conditions of the interim measure, the authority of the court and the guarantee, within one week from the notification of the report regarding the implementation of the measure. After a lawsuit is filed on the merits, the objection is decided by the court hearing the case.

For the right to object to arise, the decision does not have to be made in the absence of the parties. Even if the decision is made at the hearing, the other party will have the right to object.

The third paragraph states that "third parties whose interests have been clearly violated due to the implementation of the interim injunction may also object to the conditions of the interim injunction and the guarantee within one week after they learn about the interim injunction." It is arranged as follows. In order for third parties to use this opportunity, the implementation of the interim measure must affect their interests. In addition, third parties may appeal against the terms of the interim injunction and the guarantee. The objection period for third parties begins as soon as they learn about the precautionary measure.

Examination of the Objection

In the fourth paragraph of the article, the form of the objection and the court's examination method and decision are regulated. According to the regulation in the article, the objection is made through a petition and the reasons for the objection must be clearly stated with all the evidence in the petition. As stated in the justification of the article, even if the parties were not heard when the precautionary decision was made, the parties to the measure and the relevant third parties should be invited to be heard upon objection. This is necessary for a more sound decision on the measure upon objection and also for the realization of the right to be heard. However, if the relevant parties do not come despite the invitation, the court may make a decision by reviewing the file. Because temporary legal protection must be clarified in a short time. Upon objection, the court may completely revoke or change the injunction decision at the end of its review.

Legal Remedy Against the Decision on Objection

According to the 5th paragraph of the article; Legal remedies may be taken against the decision regarding the objection. This application is first examined and a final decision is made. Having resorted to legal action does not stop the implementation of the measure.

In addition, if the request for precautionary measures is rejected, an appeal can be taken.

Other than these, there is no possibility of taking legal action against the interim injunction decision.

IMPLEMENTATION OF THE INJUNCTIONAL MEASURE DECISION

According to Article 393 of the HMK:

1- Implementation of the interim injunction decision must be requested within one week from the "notification or notification of this decision to the party requesting the measure". Otherwise, even if a lawsuit is filed within the legal period, the injunction decision is automatically lifted.

2- Implementation of the injunction decision is requested from the enforcement office located in the jurisdiction of the court that issued the decision or where the property or right subject to the injunction is located. The court may also assign the editor-in-chief to the implementation of the measure by stating it in its decision.

3- If necessary, force may be used to enforce the interim injunction decision. Regarding the use of force, all law enforcement forces and headmen in villages are obliged to assist and obey the orders of the officer who will carry out the application, upon his written application.

4- The officer who implements the precautionary measure prepares a report. In this report, the subject of the measure and its location are indicated; Any claims regarding the issue of precautionary measures are recorded in this report. The officer implementing the measure shall notify a copy of this report to the parties who were not present during the measure and, depending on the situation, to the third party.

5- In case of legal action regarding interim injunction decisions, only copies of the files and evidence regarding the injunction are sent to the relevant court.

Injunction decisions regarding the prohibition of real estate transfer do not require application to the enforcement office. In such cases, the court automatically writes to the land registry office.

REMOVEMENT OF THE INJUNCTIONAL MEASURE DECISION

We feel the need to compile the reasons for the removal of the measure mentioned under various headings in our review topic. Accordingly, the reasons for the preliminary injunction decision to be lifted are as follows:

1-Removal of the measure as a result of objection.

2- Not filing the main lawsuit within two weeks for interim injunction decisions given before the lawsuit.

3- Providing collateral.

4- Change of situation and conditions during the case

5- The court's decision. (exception)

6- Finalization of the verdict.

7- Failure to request the implementation of the measure within one week after the provisional injunction decision is given.

Explanations regarding all of the above items are included under different headings.

CHANGING OR REMOVING THE MEASURES AGAINST SECURITY

Article 395 of the Civil Code provides a way to lift the interim measure without objection. Additionally, the interim injunction decision may be changed according to the article. According to the relevant article; If the person against whom an interim injunction has been issued or against whom this injunction has been imposed provides a guarantee that will be accepted by the court, the court may decide to change or remove the injunction, depending on the situation.

The guarantee rate will be determined in accordance with Article 87 due to the reference in the second paragraph of the article. Therefore, the judge is granted discretion. However, if the parties agree on the form of the guarantee by contract, the guarantee is determined accordingly.

An objection may be made to the removal or change of the guarantee decision.

The right to object is granted to third parties whose interests are clearly violated due to the implementation of the interim injunction decision. People other than this do not have the right to object. The objection period is determined as one week from the date of learning.

Objection is made through a petition. The objector must clearly show the reasons for his objection and include all the evidence that forms the basis of his objection in his petition. The court invites those concerned to hear; If they do not come, it makes its decision by reviewing the file. Upon objection, the court may change or revoke the injunction decision.

CHANGING OR REMOVAL OF MEASURE DUE TO CHANGES OF SITUATION AND CONDITIONS

According to the justification in the government draft; The article regulates the removal or modification of the measure in case the conditions change depending on the moment the measure was given. Interim injunction serves the purpose of protecting the right, not to punish or put pressure on the other party. For this reason, if there has been a change in the conditions that necessitated the granting of the measure after the date on which the measure was given, the measure must be changed or removed in accordance with this change. Accepting the opposite situation will lead to consequences that are incompatible with the purpose of the measure and the balance of interests of the parties. When the situation and conditions change, a request is made to change or abolish the measure. In case the measure is changed or removed, the court must state the reason for the change or removal in connection with the request.

Again, here again, the right to object is granted only to third parties whose interests have been violated. The objection period is one week.

PROCESSES THAT COMPLETE THE PRECAUTIONARY MEASURES

If the interim injunction decision was given before the lawsuit was filed, the person requesting the injunction must file his lawsuit on the merits within two weeks from the date on which he requested the implementation of this decision, and have the documents indicating that he filed a lawsuit be submitted to the officer who implemented the decision and placed in the file, and receive a document in return. Otherwise, the measure will be lifted automatically.

The effect of the interim injunction decision continues until the final decision becomes final, unless otherwise stated. However, the court may decide otherwise. In particular, after the injunction is given, if the person requesting the injunction in the original judgment is found to be wrong, the court may decide to annul the injunction along with the injunction. In this case, the measure will be lifted at the stage when legal action is taken. However, if a procedural decision has been made, for example, this may not constitute sufficient grounds for lifting the measure. All these issues will be taken into consideration by the court, and if necessary, it may decide to lift the measure together with the verdict. Unless it is decided to lift the measure, the main thing is to continue the measure until the final decision is finalized.

If the measure has been lifted or removed, this issue is reported to the relevant authorities.

The provisional injunction file is considered an annex to the main case file.

The justification of the article includes the following statements: "In order to ensure the effectiveness of the precautionary measure, which is a court decision, it is necessary to prevent any behavior that will prevent the implementation of the measure. The measure is a court order that contains the authority to use force. This order must have its sanction to ensure that it is fulfilled and to maintain respect for court decisions. With these thoughts, the criminal consequences of behavior contrary to the measure are also regulated in the article. In order to eliminate hesitations on the part of the court that will impose the penalty, the article is clear." An arrangement has been made."

PUNISHMENT FOR OPPOSING TO PRECAUTIONARY MEASURES

Anyone who does not comply with the order regarding the implementation of the interim injunction decision or acts contrary to the injunction decision will be punished with disciplinary imprisonment for up to six months upon complaint being made within six months from the date the violation was learned. The competent court is the court that issues an interim injunction if the lawsuit on the merits has not yet been filed; If a lawsuit has been filed on the merits, this is the court where the case is heard.

An invitation is sent to the person complaining about, along with the complaint petition, informing them of the date and time of the hearing. In the invitation, he is warned to submit his defense and evidence by the hearing date and that if he does not attend the hearing, the trial will continue in his absence and a decision will be made.

The court takes the defense of the complainant who comes to the hearing by reminding him of his rights stated in Article 147 of Law No. 5271.

Mahkeme, dosyadaki delilleri değerlendirerek gerekli araştırmayı yapar. If, at the end of the trial, it is determined that the person complained of did not comply with the order regarding the implementation of the precautionary measure or acted contrary to the precautionary decision, he will be punished with disciplinary imprisonment in accordance with the first paragraph; Otherwise, the complaint is rejected.

The parties may object to the decision within one week following the announcement or notification of the decision. If there is more than one chamber of the court that made the objection and the decision in that place, the chamber that comes after it in number; number one circle for the last numbered apartment; If there is only one chamber of the court that gave the verdict in that place, the court of the same level and capacity in the nearest place examines it.

The appeal authority makes its decision within one week. If the authority finds the objection appropriate, it decides on the merits of the case. The decision made upon the objection is final.

Disciplinary imprisonment decisions cannot be executed before they are finalized. The execution of finalized decisions is carried out by the Chief Public Prosecutor's Office.

In case the behavior contrary to the injunction decision ends, the requirements of the injunction order are fulfilled, or the complaint is abandoned, the case and the penalty with all its consequences are abolished.

The decision regarding disciplinary imprisonment cannot be implemented after two yearsl from the date of its finalization.

COMMENSATION DUE TO UNFAIR INJUNCTIONAL MEASURES

As we have stated in many parts of our review, the purpose of the guarantee taken when making an interim injunction decision is to cover the damages of the other party in case the measure is unfair. Article 399 of the Law also provides that compensation may be requested due to unfair precautionary measures. According to the article:

"The party in whose favor the interim measure has been decided is liable to compensate for the damage suffered due to the unfair interim measure, if it is understood that it is unfair at the time of requesting the interim measure, or if the precautionary decision is automatically lifted or lifted upon objection.

A lawsuit for damages arising from unfair interim measures is filed in the court where the case on the merits was decided.

The right to file a lawsuit for compensation becomes statute-barred after one year has passed since the judgment became final or the preliminary injunction decision was lifted."

The damage condition is included here. In addition, a causal link between the damage and the precautionary decision must be proven. This proof is determined only as a result of the trial. In the decision numbered 2013/21462 K. of the 11th Civil Chamber of the Supreme Court of Appeals, the following provision was established:

"The problem between the parties centers on whether the addressee can claim receivables or damages from the bank if the bank delays in fulfilling the compensation request and the payment is stopped by taking a precautionary injunction decision. Precautionary injunction is a court decision that eliminates the drawbacks of immediate payment. Therefore, it cannot be claimed that the addressee has suffered damage for an unlawful reason as a result of the bank's delay. Moreover, what is understood from the provisional injunction decision is that "Whether the addressee has a right to compensation will only be revealed as a result of the lawsuit, in other words, there is no damage yet due to non-payment. Therefore, it was not correct to decide to accept the case when it should have been rejected."

According to the justification of the article; Those who will claim compensation are the counterparty or third parties who have suffered damage due to the adoption or implementation of the injunction decision. Moreover, even if the measure has not been implemented, these people can claim compensation if they have provided guarantee for the measure not to be implemented or to be removed. Because, in this case, a loss will occur by providing collateral.

DIFFERENCES BETWEEN PRECAUTIONARY MEASURE AND PRECAUTIONARY LIEN

1- Precautionary lienis only possible for money receivables, but there is no limitation in terms of precautionary measures.

2- Precautionary measure is a general precautionary lien, whereas it is a special regulation.

3- Precautionary lien provides security for the money receivable, while the precautionary measure is in the nature of preventive protection.

4- If the provisional lien creditor is vindicated in the enforcement proceedings or lawsuit, the seized property is put up for sale and the sales price is paid to the creditor. In case of precautionary measures, the goods for which the measure has been taken must be returned in the same condition.

5- In order for a provisional attachment decision to be made, the creditor does not need to prove that his receivable is in danger. The existence of the conditions is sufficient for the decision to be made.