Commercial cases

WHAT IS COMMERCIAL LITIGATION?

Commercial cases are cases heard by special courts that function as commercial courts. The consequence of a case being a commercial case in terms of procedure is that it is heard only in a specially authorized court. Since the TCC does not specify a special trial procedure for the hearing of commercial cases, there is no difference with other cases in terms of trial procedure. According to Article 4 of the Turkish Commercial Code, evidence and its presentation in commercial cases are subject to the provisions of the Code of Civil Procedure No. 6100 dated 12/1/2011; Simple trial procedure is applied in commercial cases whose amount or value does not exceed one hundred thousand Turkish liras. As can be seen from this regulation, there is no special regulation in terms of trial procedure, and the only difference compared to non-commercial cases is that the simple trial procedure will be applied in cases below a certain limit. In addition, there are differences between the provisions applicable to commercial business and ordinary business. The distinction between commercial business and commercial litigation will be discussed separately under separate headings below.

TYPES OF COMMERCIAL CASES

Commercial cases are grouped under 3 headings: absolute commercial cases, relative commercial cases and cases related to rights such as transfer, trust and copyright related to a commercial enterprise.

ABSOLUTE COMMERCIAL CASES

Absolute commercial cases are cases in which no element, binding point or reason changes the commercial nature of the case, and the court's opinion does not play a role. Whether the parties are merchants or not will not change the outcome of these cases as commercial cases.

These cases are stated in Article 4 of the Turkish Commercial Code;

(1) … regardless of whether the parties are merchants or not;

a) In this Law,

b) In articles 962 to 969 of the Turkish Civil Code, regarding those who are engaged in the business of lending against pledges,

c) Articles 202 and 203 of the Turkish Code of Obligations dated 11/1/2011 and numbered 6098 regarding the acquisition of assets or business and merger and transformation of businesses, articles 444 and 447 regarding the prohibition of competition, articles 487 to 501 regarding the broadcasting agreement, articles 515 to 519 regulating the letter of credit and credit order, articles 532 to 532 regarding the commission agreement. 545, articles 547 to 554, which are prescribed for commercial representatives, commercial representatives and other merchant assistants, articles 555 to 560, which are about money transfer, and articles 561 to 580, which regulate custody agreements,

d) In the legislation regarding intellectual property law,

e) Special provisions regarding stock exchanges, exhibitions, fairs and markets, warehouses and other places specific to trade,

f) In the regulations regarding banks, other credit institutions, financial institutions and money lending businesses, civil lawsuits arising from the foreseen issues are considered as commercial lawsuits and uncontested judicial proceedings of a commercial nature.

RELATIVE COMMERCIAL CASES

While defining absolute commercial cases above, we stated that the cases listed in the law will be considered commercial cases regardless of whether the parties are merchants or not. Relative commercial cases, on the other hand, are cases other than absolute commercial cases and cases related to rights such as remittance, deposit and copyright related to a commercial enterprise, and are based on the phrase of Article 4 of the Turkish Commercial Code: "Civil suits and uncontested judicial matters arising from matters related to the commercial enterprise of both parties...". In other words, what should be understood from the article is that if both parties to a case are merchants and it concerns the commercial enterprises of both parties, the case will be considered a commercial case. If these two conditions are not met together, the case will not be seen as a commercial case.

CASES RELATED TO RIGHTS SUCH AS TRANSFER, WAIVER AND COPYRIGHT RELATED TO A COMMERCIAL ENTERPRISE

For a case to be considered a commercial case, it must be among either absolute or relative commercial cases. However, in order for lawsuits regarding rights such as transfer, deposit and copyright, which are related to a commercial enterprise that we count as the 3rd Group, to be considered a commercial lawsuit, it is sufficient that they relate to the commercial enterprise of only one party.

COMMERCIAL CASE COURT

Although the rules of duty are regulated in the Code of Civil Procedure, the rules regarding duty in commercial cases are regulated in Article 5 of the TCC. 5/1 of the Turkish Commercial Code. According to the article, "Unless there is a provision to the contrary, the commercial court of first instance is responsible for hearing all commercial cases and non-contentious judicial matters of a commercial nature, regardless of the value or amount of the thing in question."

''If there is a commercial court of first instance in a place, the cases that are within the jurisdiction of the civil court of first instance and are considered commercial in accordance with the provision of Article 4, and other matters to be handled in the commercial court in accordance with special provisions will be heard in the commercial court of first instance. If there is more than one commercial court of first instance dealing with commercial cases in a place, one or more of the commercial courts of first instance may be assigned to hear exclusively civil cases related to maritime trade and maritime insurance arising from this Law and other laws, by the Supreme Council of Judges and Prosecutors, where the business situation requires it.'' TTK 5/2

The competent courts where the cases listed under the 3 headings above will be heard are the commercial courts of first instance.

MEDIATION IN COMMERCIAL CASES

Mediation has been added to the legislation as an alternative solution for resolving disputes. As of 01.01.2019, it has become mandatory to apply the mediation procedure before filing a lawsuit in commercial cases. This regulation has been added to Article 5/A of the Turkish Commercial Code. The relevant regulation is as follows.

TTK ARTICLE 5/A

1- It is a requirement for a mediator to be consulted before filing a lawsuit regarding receivables and compensation claims, which are the subject of payment of a certain amount of money, among the commercial lawsuits specified in Article 4 of this Law and other laws.

2- The mediator finalizes the application within six weeks from the date of appointment. In cases of necessity, this period may be extended by the mediator for a maximum of two weeks.

RELATIONSHIP BETWEEN COMMERCIAL COURTS OF FIRST FIRST AND CIVIL COURTS OF FIRST FIRST INSTANCE

TTK. In Article 5/3 of , "The relationship between the commercial court of first instance, the civil court of first instance and other civil courts is a relationship of duty, and in this case, the procedural provisions regarding the duty apply." It has been edited. For this reason, the civil court of first instance cannot be considered competent in cases that should be handled by the commercial court of first instance.

The consequence of the relationship between commercial courts of first instance and other courts is that of duty, and that the court will examine the terms of jurisdiction ex officio. With this regulation, the defendant will be able to claim lack of jurisdiction at any stage of the trial.

In places where there is no commercial court of first instance, civil courts of first instance will hear commercial cases as commercial courts of first instance. If the case is heard before this title is decided (if the case is filed in the civil court of first instance), lack of jurisdiction is not taken into account by the court. The defendant must file a jurisdictional objection. If no jurisdiction objection has been made, the fact that the duty rule is not relied upon in a commercial case in a jurisdiction where there is no commercial court of first instance does not require a decision of non-jurisdiction; the civil court of first instance continues the case, as regulated in Article 5/4 of the TCC. The provision as follows applies. This issue should be taken into consideration.

WHAT IS A COMMERCIAL BUSINESS?

The concept and limits of commercial business are determined by Article 3 of the Turkish Commercial Code. In addition, the presumption of commercial business is regulated in Article 19 of the Turkish Commercial Code. Therefore, whether a job is commercial or not is determined as follows.

1- TTK's 3. Works Regulated in Article

Here, it does not matter whether the parties are merchants or whether the transaction originates from a commercial enterprise. For example, disputes arising from bills of exchange are considered commercial transactions only because they are regulated in the Turkish Commercial Code.

2- Business and Acts Concerning a Commercial Enterprise

All business to which a commercial enterprise is a party or subject is considered commercial business. Works such as renting a place to a commercial enterprise or making a service contract with workers will be considered commercial business as per the law.

3- Presumption of Commercial Business

TTK 19/1. According to the article, it is essential that a merchant's debts are commercial. The legislator has regulated the presumption of commercial business with this provision. If the real person trader clearly informs the other party at the time of making the transaction that it is not related to his commercial enterprise or if the situation is not suitable for the business to be considered commercial, the debt is considered ordinary. Again, in the 2nd paragraph of the article, "Contracts that are commercial business for only one of the parties are also considered commercial business for the other party, unless there is a provision to the contrary in the Law." There is a provision.

The concepts of commercial business and commercial litigation are different from each other, and this difference must be understood in order to prevent errors in practice. Commercial cases, within the meaning of the Turkish Commercial Code, refer to cases that, by their nature, require the special expertise of the judge. For this reason, not every commercial transaction can be seen as a commercial lawsuit. Commercial affairs are regulated in Article 3 of the Turkish Commercial Code. According to the relevant article, "all transactions and acts that concern a commercial enterprise are commercial transactions." However, Article 4, which defines commercial cases, has introduced some criteria that we have mentioned above in order for a case to be described as a commercial case. Based on this, it will be concluded that not every commercial business will be considered a commercial case. Therefore, when appointing the competent court, the issue of whether the commercial case is also a commercial case should be carefully examined.

As a matter of fact, in its decision numbered 2014/1026 E. of the General Assembly of the Supreme Court of Appeals, commercial affairs; "According to the provision of Article 3 of the Turkish Commercial Code No. 6102, all transactions and acts concerning a commercial enterprise with the matters regulated in this Law are considered commercial business. Whether a business is commercial or ordinary requires the application of different rules. It is necessary to determine whether a business is commercial or not in accordance with the rules stipulated in the law. If the business is commercial, special commercial rules must be applied. All works concerning a commercial enterprise, that is, every business involving a justified or tortious act or business, are considered commercial business, except in isolated cases. These works, if a business, are considered commercial business. "If they do not concern the business, they are not considered commercial business." He defined it as follows.

COMMERCIAL BUSINESS – ORDINARY BUSINESS

Being a commercial business requires the application of special commercial rules. These rules are available in various provisions of the Turkish Commercial Code. For example, there are differences in the provisions regarding defective goods. Another situation is the difference in the interest rates to be applied.

DIVISION OF COMMERCIAL BUSINESS AND COMMERCIAL CASE

We have explanations regarding the commercial case above. Unless the conditions we have listed under 3 headings are met, the fact that the subject of the dispute is a commercial business or that it is considered a commercial business for the other party due to the presumption of commercial business is not sufficient for the case to be a commercial case. 19/2 of the Turkish Commercial Code, which regulates the presumption of commercial business. According to the article, the fact that a business that is considered a commercial business for one of the parties is also considered a commercial business for the other party does not automatically make the nature of the case commercial. Except for cases that are considered commercial cases by law, the TCC determines commercial cases on the basis of commercial enterprise, not on the basis of commercial business. In this case, the fact that the work is of a commercial nature does not automatically make the case a commercial case. The presence of other conditions is also required. As a matter of fact, in a decision of the 3rd Civil Chamber of the Supreme Court of Appeals dated 2016, "The case concerns the request for annulment of the objection to the proceedings initiated for the purpose of collecting the receivable arising from the electricity subscription. It is undoubted that only the plaintiff of the parties is a merchant, the defendant does not have the title of a merchant, and in this context, the court in charge of the concrete dispute is the Civil Court of First Instance." The provision was made as follows.

Commercial business provisions may be applied to a case pending in a civil court of first instance or another court if the conditions in TCC 19/2 are met. For example, in a case that meets the conditions, the non-merchant party may request commercial interest to be applied against the merchant. And commercial interest may be applied in accordance with the presumption of commercial business.