Crime of violation of commitment

3- When making a commitment, all receivable items must be specified one by one and in detail.

The amount to be paid must be clear, without any room for delay, and the amount to be paid must not be conditional. The amount of the debt and the accessory items to be processed must be calculated and their numerical values ​​must be clearly stated in the commitment. Strict formal conditions are required for the crime of breach of commitment to occur. In particular, issues such as not clearly stating the interest that has been and will be accrued, not writing the numerical value of the debt, and not clearly stating the waived issues will be interpreted as invalidity of the commitment.

4- The debtor should not be in a position to pay his debt due to reasons beyond his control.

If the debtor cannot pay his debt due to reasons beyond his control, this debtor cannot be said to have violated the commitment and no crime will occur. Article 38/8 of the Constitution. The article states that "No one shall be deprived of his liberty merely because of his failure to fulfill a contractual obligation". The commitment made between the debtor and the creditor is in the nature of a contract. Therefore, in every concrete case, the courts must first evaluate whether the Constitutional provision should be applied to the concrete case. This obligation arises from the fact that the constitution is at the top of the hierarchy of norms. When Article 38/8 of the Constitution is examined, the event regulated here is the failure to fulfill the obligation. Since not bringing and not being able to bring are different concepts in terms of intention and ability to pay, the sanctions to be applied are different. As a matter of fact, the constitution does not protect those who do not fulfill their debts. In practice, extraordinary events such as disease, fire, flood and earthquake are accepted as acceptable reasons. The concept of "failure to fulfill" stated in the Constitution has a broader meaning, including "just cause". The situation where the debtor cannot fulfill his debt due to his inability to pay is also protected by the constitution. If the debtor has difficulty paying due to other reasonable reasons, he/she will not be given a deprivation of liberty penalty.

5- The crime of breach of commitment is a crime subject to complaint.

It may also be decided that the debtor will pay the debt in installments. If it is agreed to pay in installments, failure to pay the first installment will immediately constitute a crime. There is no need to wait for the remaining installments. In this case, the creditor has the right to request the punishment of the debtor from the competent Enforcement Criminal Court within 1 year.

6- The debtor may be sentenced to a maximum of 3 months in prison for the same violation.

In practice, more than one breach of commitment may occur when the debtor undertakes to pay the debt in installments. If the debtor is punished for 3 months for his first violation, a lawsuit cannot be filed for other violations. Any lawsuits to be filed will be rejected. However, if he is sentenced to less than 3 months for the first violation, he may be punished for a total of not more than 3 months for other cases. If a 3-month sentence is given, other cases will be rejected. If the cases are filed at the same time, the files should be combined and the first execution should be waited.

7- The invitation sent on behalf of the defendant should clearly and legibly state that if he does not arrive, the decision will be made in his absence.

The fact that the invitation issued to the defendant did not state that if he did not attend the hearing, the decision would be made in his absence was seen as a reason for reversal.

8- The actions of the defendants who undertake to pay both on their own behalf and on behalf of the company due to the debt in the same follow-up file constitute a single crime.

Therefore, the person who makes the commitment on behalf of both the company and himself is punished for only one crime and the penalty cannot be more than 3 months.

9- If the complainant or his representative is not present at the hearing, the defendant will not be punished.

According to Article 349 of the EBL, it is mandatory for the complainant or his/her representative to be present at the hearing. If this condition is not met, the defendant cannot be punished.

10- Making a new commitment will invalidate the previous commitment.

While there is a commitment made with the debtor, making a new commitment to pay the same debt will make the old commitment invalid. Therefore, if there is a lawsuit filed regarding the first commitment, it will be dismissed. "As stated in the decision of the Supreme Court Criminal General Assembly dated 20/02/2001 and numbered 2001/8-19 Principles, decision numbered 2001/26, which was also adopted by our Chamber; in order for the violation of the payment condition to occur, the minutes must include the date of regulation, the amount of the debt subject to follow-up, the application and collection fee, the attorney's fee, the enforcement costs and the date of execution from the date of finalization of the enforcement proceeding to the date of commitment and from the date of commitment. The interest to be accrued until the due date of payment must be shown in detail, and if the creditor waives the interest to be accrued until the due date, this statement must also be written separately in the minutes. After the total amount to be paid is determined numerically in this way, the parties are obliged to make an offer and acceptance on the determined amount, and it is not sufficient for the creditor to simply sign the minutes, but his declaration that he accepts the debtor's offer regarding the payment condition must be clearly written in the minutes. If the creditor party's statement of acceptance is not included in the minutes, the payment The memorandum of acceptance stating that the person accepts the condition must be notified to the debtor before the date on which the payment of the debt is committed.... ''Y19CD 2015/10711 E.

HOW CAN THE CRIME OF VIOLATION OF COMMITMENT BE REMOVED?

We have stated above that violations of commitment are subject to complaint. In crimes subject to complaint, the removal of the complaint also eliminates the punishment. Another way to avoid conviction due to breach of commitment is to pay the debt to the enforcement office. Whichever of these two methods is used, all consequences of violating the commitment will be eliminated. If the trial results in conviction, the prisoner will be released immediately.

COMPLAINING PERIOD AND STATUTE OF LIMITATION FOR BREACH OF COMMITMENT

It has been regulated that the right to complain in case of breach of commitment will cease after 3 months, and in any case 1 year, from the date of learning of the violation. What is important here is the history of learning the verb. Again, the penalty statute of limitations is 2 years from the date of finalization of the decision.