ABSTRACT
On 13.09.2018, Decree No. 32 on the Protection of the Value of Turkish Currency was amended. Subsequently, the communiqués issued based on Decree No. 32 were revised in accordance with the relevant amendment. In this article, how the amendments made in the Decree No. 32 and the communiqués issued based on this Decree have found a place in the practice of the Court of Cassation has been evaluated separately in terms of Civil and Criminal Chambers.
I. INTRODUCTION
The regulation dated 13.09.2018 is important for the implementation of the Decree No. 32 on the Protection of the Value of Turkish Currency (“Decree”)1. As a matter of fact, with the introduction of the prohibition of concluding contracts in foreign currency or indexed to foreign currency, significant changes have occurred in terms of contracts that are frequently encountered in daily life. It is obvious that an amendment with such consequences will have an important place in judicial decisions. In general, the implementation of the introduced regulation differs between the Civil and Criminal Chambers of the Court of Cassation. In terms of the Civil Chambers, the prohibition of concluding contracts in foreign currency or indexed to foreign currency is examined in terms of the nature of the provisions, the scope of adaptation and exceptions, and in terms of the Criminal Chambers, the administrative fines imposed for violating the Law on the Protection of the Value of Turkish Currency are examined in terms of whether they are in compliance with the law.
II. APPLICATION OF DECREE NO . 32 FOR THE CIVIL COURTS
First of all, it will be necessary to briefly mention the amendments made. Article 1 of the Decree Amending the Decree No. 32 on the Protection of the Value of Turkish Currency published in the Official Gazette on 13.09.2018 added subparagraph (g) to Article 4 of the Decree No. 32 on the Protection of the Value of Turkish Currency2:
“g) Except for the cases determined by the Ministry, the contract price and other payment obligations arising from these contracts cannot be determined in foreign currency or indexed to foreign currency in all kinds of movable and immovable property and real estate leasing, leasing, including movable and immovable property purchase and sale, vehicle and financial leasing, leasing and employment, service and work contracts between residents in Türkiye.”
This regulation (Art. 4/g) is a limitation of the freedom of contract (within the scope of the Turkish Code of Obligations) introduced by “Law”. However, the President derives this authorization from the Law on the Protection of the Value of Turkish Currency.
The Regulation firstly prohibits the determination of the contract price in foreign currency and foreign currency indexed for certain contracts and persons. In addition, it is stipulated that the prices of some contracts concluded before the entry into force of the regulation must be re-agreed in Turkish currency.
Provisional Article (8) added to the Decree No. 32 with Article 2 of the Amending Decree reads as follows: “Within thirty days from the date of entry into force of subparagraph (2) of Article 4 of this Decree, the prices specified in the said subparagraph and agreed in foreign currency in the contracts previously concluded in force, except for the cases determined by the Ministry; shall be re-determined by the parties in Turkish Currency.” The Communiqué Amending the Communiqué on the Decree No. 32 on the Protection of the Value of Turkish Currency was published in the Official Gazette dated 06. 10.2018 and numbered 30557. The aforementioned amendment specifies which contracts will be subject to this prohibition, as well as its scope and exceptions.
Although the regulation in Article 8 of the Communiqué is open to criticism in terms of systematics, it draws the limits of the prohibition in general. The relevant article governs the “prohibition of determining the contract price and other contractual payment obligations in foreign currency or foreign currency value records” as well as the exceptions to this prohibition for certain types of contracts and contracting parties.
Regarding Decree No. 32, the most frequently encountered situation in judicial decisions is about the nature of the provisions. The doctrine criticizes the opinion of the Court of Cassation and states that it is legally inaccurate. Firstly, it will be useful to examine the approach of the Court of Cassation in terms of the nature of the judgment.
A. Decree No. 32 on the Protection of the Value of Turkish Currency and the Nature of the Provisions in the Communiqué on Decree No. 32 on the Protection of the Value of Turkish Currency
In terms of the Decree No. 32 on the Protection of the Value of Turkish Currency and the Communiqué on the Decree No. 32 on the Protection of the Value of Turkish Currency issued by the Ministry of Treasury and Finance pursuant to this Decree (“Notification”)3 and the Law No. 1567 on the Protection of the Value of Turkish Currency (“Law”)4, it is controversial what the sanction will be in case of violation of the prohibition of determining the contract price in foreign currency or indexed to foreign currency. In a decision of the Court of Cassation, it was requested to decide on eviction as a result of an enforcement proceeding filed in foreign currency, and it was observed that the approach of the Court of First Instance, the Regional Court of Justice and the Court of Cassation was in the same direction.
Article 3 of the Law contains a special provision, which stipulates an administrative fine as the sanction for violation of the general and regulatory actions to be taken by the President in accordance with the Law, and does not mention any other sanction. The prevailing view in the doctrine is that the sanction of definitive nullity can be applied in the cases listed in the law and that the provisions regarding this sanction should be interpreted narrowly and its scope should not be increased by broad interpretation5. If there is a hesitation to apply the sanction of nullity, it is stated that the interpretation method in the direction of not being deemed null and void should be prioritized in order to keep the transaction alive.
Court of Cassation opinion is not in line with the prevailing view. In its decisions, the Court of Cassation generally imposes the sanction of nullity in the event that a contract is concluded in violation of the Decree and the Communiqué and does not allow any claim for consideration based on the contract. However, if the debate on the appropriateness of such a sanction is cast aside, the sanction of nullity mentioned herein may only be in question in terms of the agreed consideration. In other words, it cannot be interpreted that all provisions of the contracts concluded in violation of the prohibition of fixing consideration in foreign currency or indexed to foreign currency will be subject to the sanction of nullity6.
B. Being Related to Public Order
In terms of the enforcement and duration of the Decree, the adaptation provision is foreseen for the contracts concluded until the entry into force of the Decree, and the Communiqué is also excluded from the scope of the prohibition in terms of overdue receivables, and in the relevant cases, it is stated that the parties may claim these rights before the court, since the determination of the prices in the contract in foreign currency or indexed to foreign currency will not constitute a violation of public order. In this regard, the decision of the Court of Cassation that the objections made in this direction are not deemed to be grounds for reversal is as follows:
“…Although it is stated in the decision that the content of the contract subject to the lawsuit is not among the contracts within the scope of the communiqué on the Decree No. 32 on the protection of the value of Turkish Currency, the said communiqué states that there is a prohibition on transactions in foreign currency in contracts of work…
…the defendant’s objections within the scope of the communiqué regarding the Decree No. 32 on the protection of the value of Turkish currency were not deemed acceptable due to the nature of the contract…”(6. HD., E. 2023/1588 K. 2023/2370 T. 14.6.2023)
The Court of Cassation ruled;
“…12.09.2018 dated Presidential Decree Amending the Decree No. 32 on the Protection of the Value of Turkish Currency published in the Official Gazette dated 12.09.2018, Communiqué Amending the Communiqué on the Decree No. 32 on the Protection of the Value of Turkish Currency published in the Official Gazette dated 16.11.2018, the Communiqué on the Amendment to the Communiqué on the Decree No. 32 on the Protection of the Value of Turkish Currency, the Announcement of the Ministry of Treasury and Finance dated 13.10.2020 and the current legal legislation, in which it is explained how to determine the contract price in foreign currency, Article 26 of the TCO; “The parties may freely determine the content of a contract within the limits stipulated by law.” and in Article 27/1 of the same law; it is regulated that contracts that are contrary to the mandatory provisions of the law, morality, public order, personal rights or whose subject matter is impossible will be null and void, with the amendment made in 2018 in the legislation put into force in order to protect the value of the Turkish currency, it is aimed to protect the economic public order by limiting the freedom to make contracts in foreign currency and indexed to foreign currency, and this situation should be taken into consideration by the courts ex officio, …”(12. HD., E. 2023/2188 K. 2023/3418 T. 16.5.2023).
The Court of Cassation considered the relevant regulation as a matter of public order and ruled that it should be applied ex officio. As it can be seen, the Court of Cassation considers the amendment to be related to economic public order and subjects it to the sanction of final nullity pursuant to the TCO.
In another decision in the same direction, the Court of Cassation referred to the provisions on how to determine the price in the event that the contracts are within the scope of the prohibition in the context of the Communiqué, and then, by referring to Articles 26 and 27 of the TCO, reversed the decision of the Court of First Instance that the reasons that could not be raised as an objection to the enforcement proceedings would not be taken into consideration in the court, and decided that the regulation should be taken into consideration ex officio by the court since it concerns the economic public order:
“…When the above-mentioned legal regulations are evaluated as a whole, in the concrete case, it is understood that a fixed-term lease agreement was signed between the parties between 30/12/2010-30/12/2020, it was agreed to pay the contract price as 50.000 Euros each year, upon the extension of the contract period by the parties, the lessor creditor requested the payment of the rent receivable of 15.687,12 Euros missing from the lease period dated 31/12/2020-30/12/2021, and it is understood that the parties did not reach an agreement on the payment of the rent.
In that case, the reasoning that the court cannot examine the foreign currency indexed rent subject to the proceedings since the reasons that are not put forward in the execution office cannot be heard in the proceedings pursuant to Article 63 of the Enforcement and Bankruptcy Law is erroneous. While this change related to public order should be evaluated and a decision should be made according to the result to be formed…”(12. HD., E. 2022/6469 K. 2022/9954 T. 6.10.2022).
Although the Court of Cassation states that the prohibition introduced by the Decree No. 32 concerns the economic public order and applies the provisions of Article 26 of the TCO on the content of contracts and Article 27 of the TCO on the nullity of provisions contrary to public order, this does not result in the complete annulment of the contract. As a matter of fact, pursuant to Article 27/2 of the TCO, the invalidity of some provisions of the contract shall not affect the validity of the others. In this respect, in the context of the Decree, in cases where the contract price is required to be converted into Turkish Currency, only the provisions of the contract listed in the context of price and other payment obligations shall be attributed invalidity7. In the decision of the Court of Cassation upholding a decision of the Court of First Instance in this respect, the Court of First Instance stated as follows:
“…Although the defendant debtor has claimed that the lease agreement has become invalid within the scope of Provisional Article 8 of the Decree No. 32 on the Protection of the Value of Turkish Currency at the stage of the lawsuit, Provisional Article 8 of the aforementioned decision will not give the defendant debtor the right to use the immovable subject to the contract as a tenant without making any rent payment, and if the defendant party claims that the arrangement regarding the rental price is invalid pursuant to the aforementioned decision, he must pay the rental price determined by him based on objective principles to the defendant creditor, However, the defendant only asserts the invalidity of the arrangement regardingthe rental fee, and neither in its objections to the execution files, nor in its reply petition submitted to the court, nor in its oral statements in the hearings, it has not been able to present a document that has been issued ex officio by the notary public or whose signature has been certified or acknowledged by the creditor as required by the law for the rental payments for the months subject to the proceedings…”(12. HD., E. 2023/2761 K. 2023/2950 T. 2.5.2023).
The Court of Cassation jurisprudence on public order has stabilized and does not compromise on public order in disputes arising for the same reason. Another decision in this regard is as follows: (12. HD., E. 2023/3250 K. 2023/3755 T. 29.5.2023).
As another issue, the determination of the scope of the prohibition is also included in the decisions of the Court of Cassation. In a Court of Cassation decision, the price part of the bill of exchange, which was signed and delivered to the creditor in blank, was filled in foreign currency and enforcement proceedings were initiated based on this. The Court of First Instance ruled that there was no legal impediment to the enforcement proceedings based on the bill of exchange whose price was determined in foreign currency. Subsequently, this decision was upheld by the Regional Court of Justice and the Court of Cassation. In general, it should be mentioned that pursuant to subparagraph 21 of Article 8 of theCommuniqué, the prices of negotiable instruments to be issued for the performance of the obligations arising from the contract to be concluded in cases where the contract price cannot be agreed in foreign currency or indexed to foreign currency are included within the scope of the prohibition8.
“(21) Pursuant to this article, it is not possible to determine the prices in foreign currency or indexed to foreign currency in the negotiable instruments to be issued within the scope of contracts where the contract price and other payment obligations arising from these contracts cannot be determined in foreign currency or indexed to foreign currency. However, negotiable instruments within this scope, which were issued and put into circulation before the effective date of Provisional Article 8 of Decree No. 32, are exempt from the provision of the said provisional article”.
Exceptions were listed in the second sentence. However, in the case in the decision of the Court of Cassation, it was not mentioned that there was a contract between the parties in foreign currency or indexed to foreign currency, and the lawsuit was filed based solely on the determination of the bond price in foreign currency and therefore the lawsuit was dismissed. Because there is no provision in the legislation stating that negotiable instruments cannot be issued directly in foreign currency:
“…Within the scope of Article 4/g of the Presidential Decree No. 32 on the Protection of the Value of Turkish Currency and the communiqué issued within the scope of the provisional Article 8 of the same decision and the communiqué on the amendment of this communiqué and within the framework of the above-mentioned articles of law, there is no legislation preventing the parties from issuing a bill of exchange in foreign currency and placing this bill of exchange in the proceeding, the bond on which the proceeding is based has legal elements, and there is no procedural and legal violation in the enforcement proceeding specific to the bills of exchange initiated against the debtor…”(12. HD., E. 2022/7737 K. 2023/179 T. 12.1.2023).
C. Analysis in terms of Lease Agreements
The prohibition on the conclusion of contracts in foreign currency introduced with the amendment of the Decree regulates many types of contracts. However, some types of contracts are more common in the practice of the Court of Cassation. The application of the Decree in terms of lease agreements constitutes the majority decisions of the Court of Cassation.
In the context of Decree No. 32, lease agreements are classified within themselves and are not included within the scope of the prohibition as a whole. Namely, it is prohibited to determine the price and other obligations of the agreements in foreign currency for immovable leases. However, pursuant to paragraph 10 of Article 8 of the Communiqué, it is possible to determine the contract price and other obligations arising from the contract in foreign currency or indexed to foreign currency for movable leases, except for vehicle leases. In this respect, it should be noted that the lease agreements in the Court of Cassation decisions to be examined below are immovable lease agreements.
Pursuant to the regulation introduced by the second paragraph of Article 8 of the Communiqué, the contract price and other contractual obligations in real estate leasing transactions cannot be determined in foreign currency or indexed to foreign currency. In this respect, the provisional Article 8 of the Decree stipulates that the adaptation shall be made within 30 days from the effective date9. How the adjustment will be made is specified in paragraphs 29 and 30 of Article 8 of the Communiqué. This matter is explained within the context of the Communiqué’s provisions in a great ruling from the Court of Cassation that demonstrates how the adjustment will be made:
“…In Article 1 of the section titled “Special Conditions” of the lease agreement, which was concluded between the parties on 01/02/2014 and whose performance continues as of the date of the lawsuit; At the end of the first five years, the rental fee will be paid annually in TL equivalent to net $120,000 per year.”, it is obligatory to redetermine this rental fee, which is determined in foreign currency indexed, according to Turkish Lira, and since the parties to the contract have not made a redetermination by reaching an agreement on this issue, the court of first instance should make an evaluation in accordance with the provisions of the relevant legislation mentioned above and, if necessary, by obtaining an expert report in the field, a decision should be made by redetermining the rental fee determined in foreign currency indexed in the contract in Turkish currency to be valid as of 01/02/2019, while the court of first instance should make a decision by redetermining the rental fee determined in foreign currency indexed in the contract in Turkish currency to be valid as of 01/02/2019, but ruling to dismiss the case with incomplete examination…”(3. HD., E. 2021/1139 K. 2021/11528 T. 16.11.2021).
As a result, the Court of Cassation reversed the decision of the Court of First Instance as the adaptation, which should have been made within 30 days, was not made in the concrete case and stated that if the adaptation is not made, the adaptation should be made by means of an expert in the lawsuit filed for the determination of the rent.
Apart from the adaptation, it is also necessary to examine the determination of the scope of the prohibition in terms of the person. In another decision, the Court of Cassation upheld the decision of the Regional Court of Justice, which examined the scope of the application of the Decree in terms of person and, as a result of the examination, decided that the parties were within the scope of the exception and were not subject to the prohibition of concluding contracts in foreign currency or indexed to foreign currency10:
“…the sole shareholder of the defendant tenant company is ...Taşımacılık Hizmetleri Ltd. Şti., ... the record shows that the shareholders of ...Taşımacılık Hizmetleri Ltd. Şti. are ...International Limited and Fratelli ... ... S.A., that the entire capital of the lessee company in the issue of .... dated 28.08.2019 and 11.10.2022. International Transportation Ltd. Şti, and the shareholders of this company are ... ... SPA and Fratelli ... ... S.A., therefore the lessee company is within the scope of the exemption regulated in paragraphs 3 and 19 of Article 8 of the Communiqué…” (12. HD., E. 2022/13113 K. 2023/1751 T. 16.3.2023).
D. Exemptions
Although the Decree and the Communiqué issued by the Ministry prohibit the conclusion of contracts in foreign currency in some cases, receivables arising from previously concluded contracts are not included in the scope of the prohibition. Paragraph 31 provides exceptions for circulation of negotiable instruments, overdue receivables and deposits. Considering the strict stance of the Court of Cassation on this issue, it may be interpreted that even the good faith transferee of negotiable instruments issued in violation of the prohibition will not be protected11.
Pursuant to the last paragraph of Article 8 of the Communiqué, “collected or overdue receivables, deposits given within the scope of real estate lease agreements and negotiable instruments put into circulation within the scope of the performance of the agreements” are excluded from the scope of the prohibition. However, the adaptation obligation still continues in terms of the contracts concluded. In a decision of the Court of Cassation, which was reversed by the Court of Cassation by stating that enforcement proceedings can be initiated based on overdue receivables arising from the contract price agreed in foreign currency or indexed to foreign currency, because overdue receivables are not included in the scope of the prohibition and therefore, it is not necessary to consider a situation that protects public order, the following statements are stated:
“…In the concrete case, it is understood that the rent amounts for the period dated 01.01.2017 and 01.01.2018 are in the nature of overdue receivables, considering the fact that the rent amounts to be paid in advance on 01.01.2017 and 01.01.2018 are demanded by the creditor, the underlying lease agreement between the parties has become final in terms of the said follow-up since the defendant has not objected to the signature in the lease agreement based on the follow-up separately and explicitly, and the arrangement that the rent amount will be paid on January 1 of each year and in advance according to this agreement, it is understood that the rent amounts for the period dated 01/01/2017 and 01/01/2018 subject to follow-up are in the nature of overdue receivables….” (12. HD., E. 2021/9299 K. 2021/9545 T. 2.11.2021).
III. DECISIONS OF THE CRIMINAL COURTSIN TERMS OF THE IMPLEMENTATION OF DECREE NO. 32
The application of the Decision by the Criminal Chambers generally raises the issue of opposition to the Law on the Protection of the Value of Turkish Currency, and appeals against administrative fines imposed for this reason are decided. However, the fines arising from this opposition arise from different provisions and are not centred on a single issue similar to the Civil Chambers. In this respect, for each decision, an explanation on the subject will be given, provided that it is not duplicated, and then the parts to be considered in the decisions will be shown.
In general, the focus of the decisions is on the repatriation of export proceeds and the transportation of Turkish Lira abroad. Notification obligations and other obligations are generally mentioned in the relevant decisions.
A. Exportation of Foreign Currency and Turkish Lira and Notification
Pursuant to the Communiqué issued in the context of Decree No. 32, Article 4 stipulates the obligation of notification for the exportation of foreign currency in excess of a certain amount, and further stipulates that making false and misleading statements will be reported to the Public Prosecutor’s Office as a violation of the Law and action will be taken accordingly. In terms of the fines to be imposed under the aforementioned regulation, it should be noted that while calculating the amount of the administrative fine, action should be done for any percentage that exceeds the restriction. The relevant Court of Cassation decision in this regard is as follows:
“..The misdemeanor resulted in the seizure of 10.000 Euros and 20.000 US dollars. According to the aforementioned regulation, an administrative fine should be imposed on the Turkish lira equivalent of 20.000 US dollars exceeding the amount not subject to declaration, without considering that the decision to reject the objection to the administrative sanction decision imposed on the total amount of foreign currency seized in writing instead of accepting it in the aforementioned aspect should also reflect this fact…” (7. CD., E. 2021/20751 K. 2021/16387 T. 22.11.2021).
Pursuant to Article 3/5 of the communiqué on the decree numbered 32, the obligation to notify the Customs Authorities in terms of taking Turkish Lira out of the country has been mentioned, and in addition to this, if this transaction is carried out for the benefit of a legal entity, it is envisaged that the legal entity will also be fined. In this regard, it is also stated in Article 15/2 of the Law on Misdemeanours that if the misdemeanour is committed repeatedly, a fine will be imposed again for the same act12. However, the Court of Cassation stated that if it cannot be determined that the fact of being taken out of the border is done separately, it should be interpreted in favour of the misdemeanour13:
“…The Gaziantep Chief Public Prosecutor’s Office has imposed an administrative sanction of 2.336.000,000,00 Turkish liras on the misdemeanor; this sanction includes an administrative fine of 3.000,00 Turkish liras for each transaction and a notification fee of 14,00 Turkish liras each. However, if it cannot be demonstrated that all of the funds subject to multiple receipts issued on the same date, Esas No 2021/15823, were taken out of the border with each passenger individually, then the misdemeanor should be interpreted favorably and a sanction should be imposed once on the same dated receipts, while sanctions should be imposed separately on each of them.…” (7. CD., E. 2021/15823 K. 2021/15374 T. 23.11.2021).
In another decision of the Court of Cassation in the same direction, it was stated that the administrative fine should be imposed only for the part that is not brought into the country and that the imposition of an administrative fine over the entire export value would be contrary to the Law: (7. CD., E. 2021/31922 K. 2022/1814 T. 27.1.2022) In addition, the Court of Cassation emphasized that the bank should be specifically asked for confirmation regarding the repatriation of the amounts:
“Since it is understood with the export price acceptance document dated 20/09/2021 and serial number 0000400629 belonging to QNB Finansbank A.Ş. Mersin Branch, which is presented in the annexes of the objection petition of the misdemeanor attorney dated 21/09/2021 and the petition for reversal in favor of the law dated 19/10/2021, it is necessary to make a decision according to the result by asking the relevant bank branch to confirm the authenticity and content of the export price acceptance document in question.” ( 7. CD., E. 2022/4154 K. 2022/11932 T. 12.9.2022).
As another issue, the principles of the foreign trade regime of precious metals, stones and goods are regulated in the context of Decree No. 32, and in accordance with the principles specified in Article 7, notification to the Customs Authorities is mandatory for standard unprocessed and non-standard unprocessed gold. In this case, it is emphasized that it is clear that gold cannot be imported without declaration to the Customs Authorities14. In the decision of the Court of Cassation regarding the relevant issue:
“…In the incident in which scrap gold was seized in the search made in the vehicle upon finding suspicious density as a result of x-ray scanning; the fact that the scrap gold subject to the crime is prohibited to be imported into the country without being declared to the customs administration in accordance with the Decree No. 32 on the Protection of the Value of Turkish Currency…” (CGK., E. 2017/1035 K. 2018/659 T. 18.12.2018).
B. Bringing Export Fees to the Country
Article 3/1 in accordance with the communiqué issued on export proceeds in the context of Decree No. 32:
“(1) The amounts related to export transactions realized by Turkish residents shall be transferred or brought directly and without delay to the bank that intermediates the export following the payment of the importer. The period for bringing the proceeds into the country cannot exceed 180 days from the date of actual export”.
In terms of the implementation of the Decree, it is important to determine the fact of being brought into the country. The case law of the Court of Cassation regarding what needs to be done in terms of determining the fact of bringing into the country is as follows:
“…Regarding the customs declaration dated 09/11/2018 and numbered 18070100EX019691, which was subject to administrative sanction, it is understood that the entire amount of 76958,25 USD exports was transferred to the account of the misdemeanor company’s account at the Vakıflar Bank Döşemealtı branch on 19/02/2019, and that the document numbered 170376 receipt, which is stated to belong to the said bank branch, was submitted, accounting records, bank records, etc., and the file together with the relevant documents should be submitted to an expert in the field, and a detailed and auditable expert report should be obtained regarding whether the export costs have been brought into the country in accordance with the aforementioned regulations, taking into account the contents of the declaration of the misdemeanor attorney, and a decision should be made as a result of the examination to be made by obtaining an expert report…” (7. CD., E. 2022/3545 K. 2022/12412 T. 22.9.2022).
IV. CONCLUSION
The amendments to Decree No. 32 introduced by the regulation dated 13.09.2018 are important. This is because the relevant regulation has introduced important regulations in terms of contract types that are frequently encountered in daily life. It is obvious that a change that affects daily life so much has a prominent place in judicial decisions. In general, the practice of the Court of Cassation has become established, and uniformity has been achieved. In this regard, for example, it is no longer discussed in judicial practice that the provisions regulating contract prices in violation of the Decision and Communiqué are subject to the sanction of final nullity regulated in Article 27 of the TCO, as the regulation introduced regarding Decree No. 32 is related to economic public order and should be taken into consideration by the courts ex officio. In addition to this, there are no case law differences regarding how the adaptation of contract prices previously agreed in foreign currency or indexed to foreign currency will be made and which types of contract prices are not included in the scope of the prohibition.
Similarly, in terms of the decisions of the Criminal Chambers, the decisions of the Court of Cassation on issues such as the imposition of an administrative fine due to violation of the Law on the Protection of the Value of Turkish Currency, the imposition of a fine only for the part that is above the prohibition, the fact of exportation must be proven beyond doubt in case of repeated misdemeanor, and how to determine the repatriation of export proceeds have become established. As a result, Decree No. 32’s execution has ensured legal predictability.
BIBLIOGRAPHY
MURAT TOPUZ, Türk Parası Kıymetini Koruma Hakkında 32 Sayılı Karar Çerçevesinde Döviz ile Sözleşme Yapma Yasağı ve Sözleşmelerin Uyarlanması, 01.01.2019.
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KULAÇOĞLU HUKUK BÜROSU, Dövizle (Kira) Sözleşme Yapma Yasağı, 2023.
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FOOTNOTE
1 11.08.1989 tarih ve 20249 sayılı Resmî Gazete (RG).
2 13 Eylül 2018 Tarihli ve 30534 Sayılı Resmî Gazete (RG).
3 28.02.2008 ve 26801 sayılı Resmi Gazete (RG).
4 25.02.1930 tarihli ve 1433 sayılı Resmi Gazete (RG).
5 Türk Parası Kıymetini Koruma Hakkında 32 Sayılı Karar Çerçevesinde Döviz ile Sözleşme Yapma Yasağı ve Sözleşmelerin Uyarlanması, Murat Topuz, 01.01.2019, p. 69.
6 Yargıtay 12. Hukuk Dairesinin Döviz Cinsinden Sözleşme Düzenleme Kısıtlamasına Dair Kararı, Erkan Yetkiner/ Tufan Sevim, 08.11.2023.
7 Yargıtay 12. Hukuk Dairesinin Döviz Cinsinden Sözleşme Düzenleme Kısıtlamasına Dair Kararı, Erkan Yetkiner/ Tufan Sevim, 08.11.2023.
8 Türk Parası Kıymetini Koruma Hakkında 32 Sayılı Karara İlişkin Tebliğ Kapsamında Döviz Cinsinden Ve Dövize Endeksli Sözleşmelerin Hukuki Durumunun Değerlendirilmesi, Berfu Yalçın, Beyza Büyükağaçcı, 07.06.2022.
9 Dövizle (Kira) Sözleşme Yapma Yasağı, Kulaçoğlu Hukuk Bürosu, 2023.
10 Türk Parası Kıymetini Koruma Hakkında 32 Sayılı Karar Çerçevesinde Döviz ile Sözleşme Yapma Yasağı ve Sözleşmelerin Uyarlanması, Murat Topuz, 01.01.2019, p. 94.
11 Türk Parası Kıymetini Koruma Hakkında 32 Sayılı Karar Çerçevesinde Döviz ile Sözleşme Yapma Yasağı ve Sözleşmelerin Uyarlanması, Murat Topuz, 01.01.2019, p. 42.
12 Döviz ile İşlem Yasağına Aykırılığın Sonuçları, Bağtur Law Firm, 22.03.2023.
13 Aynı doğrultuda diğer Yargıtay Kararları (19. CD., E. 2019/29893 K. 2021/1889 T. 22.2.2021), (19. CD., E. 2019/29104 K. 2019/15726 T. 17.12.2019).
14 Aynı doğrultuda bir diğer Yargıtay Kararı (7. CD., E. 2021/29233 K. 2022/5818 T. 21.3.2022).
