Turkish Execution and Bankruptcy Law is based on performing obligations by enforcement power of the state. The Turkish Execution system is composed of the Execution offices, the Courts of Enforcement and Division Offices of the Supreme Court. The procedure is divided as enforcement proceedings with judgment and enforcement proceedings without judgment which is available only for collecting money and collateral debts. The procedure of enforcement without a judgment could be performed by the way of attachment (it is called ordinary enforcement) or by the enforcement proceedings of the negotiable instruments.
The enforcement without judgment means that, a creditor does not need a judgment in order to claim money and collateral debt from a debtor and the creditor may directly apply to the Execution office. Even the credit does not need to be based on any negotiable instruments. However, in order to be successful in this case, the enforcement proceedings should not be objected by the debtor. If it is, the creditor should file a case at the court to cancel the objection.
The aim of this article is to provide a general outline of the enforcement proceedings without a judgment for the negotiable instrument under Turkish law.
The Enforcement Proceedings for Negotiable Instruments:
This way of enforcement is regulated between Articles 167-176 of Turkish Execution and Bankruptcy Law (“İcra ve İflas Kanunu” – hereinafter is referred to as “İİK”). The definitions of then negotiable instruments were given in the Turkish Commercial Code (“Türk Ticaret Kanunu” – hereinafter is referred to as “TTK”). According to Article 582 of TTK, the negotiable instruments are promissory note, bill of exchange and cheque. This enforcement procedure is only applicable by the creditor who has one of these instruments. Even though credit has been pledged, the creditor may also request to collect the debt by applying an attachment or by bankruptcy if a debtor is subject to bankruptcy. One of the main rules in the Execution Law is, if a credit has been guaranteed by a pledge, firstly an order of foreclosure may be claimed by the creditor (Article 45 of İİK). However, the enforcement proceedings of the negotiable instrument have been an exception to this rule.
The practical result to choose the attachment procedure is which enables the attachment of debtor`s movable and immovable assets and debtor`s rights and receivables from the third parties. Following that, the seized property shall be realized by an auction and after that, the credit shall be paid from the sale value.
In short, the enforcement procedure is composed of finalization of the enforcement proceeding, attachment, realization and sharing of the sale value.
1-The enforcement proceedings without a judgment for the negotiable instruments should be requested if a creditor holds any binding negotiable instruments. They are namely:
1. Promissory note (BONO): The discretion of a binding promissory note is determined under provisions of Articles 688 and 689 of TTK. According to Article 688, a promissory note should contain “promissory note (bono)” in the context of the bill and if it was issued in other languages apart from Turkish, it should contain a word, which has the same meaning of “promissory note” in that foreign language. Undoubtedly, it should contain an unconditional payment promise at the fixed date; a place of payment; the name and surname of the payee or beneficiary; the date and place of issue and signature of the drawee.
If a promissory note does not contain any before mentioned condition/s under Articles 688 and 689, it should not be determined as a promissory note. As a result, the creditor should not request to apply this enforcement proceeding of the negotiable instruments.
2. Bill of exchange (POLICE): It was regulated in Articles 584 and 585 of the TTK and the conditions are as same as the conditions of the promissory notes. Also, it should be noted that, if a bill of exchange was issued in other language apart from Turkish, it should also contain the meaning of “bill of exchange” in that language. Therefore, even though the bill of exchange was drawn in other language, it is possible to request the enforcement proceeding in Turkey.
The most important point is that, the enforcement proceeding for a promissory note and a bill of exchange should be requested within the prescription time which is 3 years from the fixed time (Articles 661-691 of TTK).
3. Cheque (CEK): Pursuant to Articles 692-693 of TTK, a cheque would be subject to this enforcement proceeding as well. According to Article 692 of TTK, if there is a foreign cheque it should not be applied to that enforcement proceeding unless it was contained the meaning of “cheque” in the foreign language. If it was, this special enforcement proceeding for the negotiable instruments may be applied against the previous and subsequent endorser, endorsee and other debtors in Turkey by the creditor in order to collect the claim.
Other important point is that, a cheque should be presented to the bank within the presentation time. According to TTK.708, a cheque should be presented within 10 days from the due date. If it was not presented within the time limit, the enforcement proceedings for negotiable instruments shall not be requested (The Supreme Court, 12 Division Office, 6.6.2000 dated and 8861/9426 EK. numbered decision ).
A cheque is presented through that ways:
According to Article 720 of TTK, a dishonored cheque should be proved by a protest of the bill where the presentation date was shown or a dated written statement of the cheque has been dishonored by the bank or the statement of clearing house where the fact that a cheque was presented within the time, but it was dishonored. In this case a holder of the cheque may demand the credit from endorsers and endorsee and other debtors within 6 months.
If the creditor was not able to prove the cheque has been dishonored through one of these three conditions, he would not able to apply to the enforcement proceedings of the negotiable instruments for the cheque.
On the other hand, it should be underlined that, according to Article 726 of TTK, holder of a cheque is entitle to request the claim from the endorser and endorsee and other debtors and he should use this right within the presentation time. This time limit expires after passing 6 months from the presentation time. Therefore, after the limitation time, the cheque cannot be subject to this enforcement proceeding of the negotiable instruments.
It should be noted that, only a promissory notes, a bill of exchange and a cheque should be subjected to this special enforcement proceedings. As a matter of this fact, this enforcement proceeding shall not be applied with other negotiable instruments by the creditor. The Execution Officer is entitled to determine whether the negotiable instrument is a binding a promisory note, a bill of exchange or a cheque (Article 168/1 of İİK). If it is not and the proceeding has been started, the debtor should file a complaint to the Court of Enforcement within 5 day from the following date of notification (Article 168/3 of İİK). The enforcement proceedings may be cancelled when the complaint has been accepted by the court.
The amounts can be demanded in the enforcement proceedings of the negotiable instruments are as follows:
1. The main credit: The enforcement officer may check whether the fixed date has been expired. It means that, the amount may be claimed (Article 168 of İİK). However, the cheque does not have any due date. Therefore the due payment for cheque cannot be examined by the enforcement officer.
2. Default interests can be demanded from the due date or from the order of payment date.
3. The protest and notice expenses
4. The commission charge, which should not be exceeded 0,3% of the amount of the bill
5. 5% of cheque commission, which would be an amount of unpaid cheque (Article 695 of TTK).
If a promissory note, a cheque or a bill of exchange was issued or drawn in a foreign currency, the amount of the credit must be shown in Turkish currency in the enforcement procedure. Also, the rate of exchange date is noted for the foreign credits and guarantees which the claim is collected from that day (Article 58/3 of İİK).
The enforcement proceedings start with a claim form by the creditor and following that a payment order is sent to the debtor/s by the enforcement office.
The payment order contains these warnings: The debt and enforcement proceedings expenses should be paid within 10 days from the following date of the notification and if any objection about signatures should be applied to the Court of Enforcement within 5 days; if the court has not been accepted the objections there would be fine which would be determined as 10% of the claim amount; the enforcement proceedings will be carried out unless the court decision of acceptance of the complaint is provided by the debtor.
In addition, these warnings also should be notified to the debtor: If any objection which are about the credit or the jurisdiction of the enforcement office should be made to the Enforcement Court within 5 day from the following date of the notification; the enforcement proceedings will be carried out unless the court decision of acceptance of the objection is provided (Article 168/2 of İİK). If the debtor objection has been refused and the compensation claim has been made, the court will also award compensation to the creditor. The compensation would not be less than 40% of the claim amount (Articles 170/2 and 169a/6 of İİK).
The enforcement proceedings of the negotiable instruments have an advantage in comparison to the other enforcement ways. This is because it takes a short time and the complaint against the enforcement procedure should be made within 5 days and the enforcement proceedings would continue until a decision is obtained from the court. The enforcement proceedings are carried out until the stage of the realization of seized property (Article 169 of İİK). Upon the objection has been refused, the creditor may claim the realization of attached assets. Even though the debtor files an appeal, the enforcement proceedings does not stop including the auction and the sharing of the sale value (Article 169/a of İİK). In this case, the enforcement proceedings would only stop if the debtor shows a sufficient deposit where the creditor’s claim has been guaranteed (Article 33/3 of İİK).
Therefore, this enforcement proceeding is a way for a prompt collection of the debt. Because, the enforcement proceeding is continued and as a result of this, a confiscation of the debtors assets may be put into practice. The practical result is, after realization, the sale amount of the seized assets shall be given to the creditor who practiced the first attachment on the assets.
When the bills has been lost the characteristics of the negotiable instruments or the creditor do not posses any of the negotiable instruments, the creditor may apply to the ordinary enforcement proceedings with an attachment claim. However, the ordinary enforcement proceedings should be stopped upon an objection by the debtor. As a result of this, the creditor cannot continue any enforcement proceedings until the objection is cancelled by the court. Therefore, the time limit of negotiable instruments has crucial importance in the enforcement proceedings.
Cautionary Attachment Claim: Moreover, if a creditor holds binding negotiable instruments, he can also demand a cautionary attachment (Articles 257-258 of İİK). In this case, the creditor should prove that the claim is matured and the bill was presented, but not been paid. The unpaid bills and cheques should be proved by the protest and the dishonored declaration respectively. Or the claim is not matured, but the debtor has not any residence address or the debtor may transfer his assets or goods in order to avoidance of the payment. In this case, a cautionary attachment should be claimed from the court. The creditor should show a guarantee and upon the guarantee has been given; the assets, the rights’ and the receivables of the debtor from the third parties may be cautionary seized. After this interim measure, the enforcement proceedings should also be applied by the creditor.
Penal Sanctions for Cheque: Apart from the enforcement procedure for negotiable instruments, the creditor may also file a criminal case against who has dishonored the cheque under the Act No. 3167 on The Procedure of Cheque Payments and Protection of Cheque Holders. The time limit for this criminal case starts from the date of dishonor and expires in 6 months. Therefore, the claim of punishment of debtor cannot be requested after this time. According to Article 16 of the Act No. 3167, the drawer of the cheque/the holder of an account or the authorized representative of the drawer are fined. This fine would be the check amount. If a drawer is a recidivist, he would be sentenced to the imprisonment between from 1 to 5 years. Moreover, the Criminal Court may prohibit having a check account for drawee or his authorized representatives. Further, also this prohibition is notified to all banks in Turkey through the Central Bank of Turkey.
1. Kuru, Baki (2006) İcra ve İflas Hukuku, Türkmen Kitapevi , İstanbul, 2. Baskı, s 59
2. Ibid, s 65, 68
3. Ibid, s 65
4. Ibid, s 644
5. Ibid, s 644
6. Ibid, s 656 footnote 35
7. Ibid, p 657
8. Ibid, p 645
9. Ibid, p 652