The way of the debt collection according to the Turkish Law is filing a lawsuit, the other way is commencing execution proceeding which means to demand the credit from the by State force. Below mentioned information regarding the debt collection are regulated under the Turkish Law of Obligations No:6098 and Enforcement and Bankruptcy Law No:2004.
The birth of a debt may have occurred based on will or outside of will.
- If the occurrence of a debt is requested based on will, it is called the debt arising from legal transactions and contracts leads to debt in this way.
- Although the occurrence of debt based on will if it occurred due to fault of will and therefore was born the compensation liability of the damage to someone else, it is called the debt arising from torts.
- In case of the occurrence of the debt does not based on will, if the assets of a person decreased when the assets of another person increased without a cause, it is called the debt arising from unjust enrichment. On the other hand, if the debt caused directly from a legal obligation, the debt will be occurred outside of will.
As it is explained above, in case of non-payment of the debt born through legal causes by the debtor, the creditor must apply to the legal remedies to collect the debt. There are two options which can be applied by the person who wants to collect the debt according to Turkish Law. The first one is bringing a lawsuit and the second one is commencing execution proceeding.
The action for fulfillment can be proceeded for each debt which can be performed and overdue. Impossibility of performance is out of question for pecuniary debt,thus it is sufficient to become the debt due. At the end of the action for fulfillment debtor will be sentenced to perform the debt. It needs to commence execution proceeding for the execution of the judgement given by the Court. This kind of execution proceeding which is regulated under the Enforcement and Bankruptcy Law is called enforcement proceeding with judgement. At the end of commencing enforcement proceeding with judgement, it is provided that the creditor collects the debt by converting into money of the debtor’s assets through foreclosure or bankruptcy.
In case of the performance of debt is not possible or if the debt is not performed properly, creditor demand to be compensated the damages caused this situation from the debtor. If debtor cannot prove that there is no fault of debtor in this case, the debtor has to compensate the damages of creditor. In this situation creditor will bring an action for damages against the debtor. The creditor/claimant who bring the action for damages has to prove that creditor suffered damage due to impossibility of performance of the debt or the debt has not been performed properly and also has to prove there is appropriate causal link between damages and non-performance or improper performance of the debt. Due to the non-performance or improper performance of the debt, creditor may be suffered material damages as may be suffered moral damages.
In accordance with the judgement which is given by the Court at the end of these actions, if debtor does not perform the debt at own will, creditor must commence enforcement proceeding with judgement. The subject of the debt which will subject to enforcement proceeding with judgement may be giving money or deposit, also may be movable delivery, child delivery, establishing a personal relationship with the child, eviction and delivery of immovable. Creditor must have a judgement or presumptive judgment to commence enforcement proceeding with judgement.
Creditor does not have to identify the debt by the judgment which is given by Court. It can be commenced enforcement proceeding without judgement without the obligation of take an action for pecuniary claim and deposits. It is accepted exceptionally in some cases leased immovables can be discharged through the enforcement proceeding without judgment. It is not necessary to be guaranteed the debt under the bill as it is not necessary to be identified the debt by the judgement which is given by Court.
In accordance with the Turkish Law, there is three types of enforcement proceeding without judgement. The first one is general lien way. In case of the debt is not guaranteed under the bill of exchange, it should be commenced general lien way. If the debt is guaranteed under the bill of exchange (check, bill, bond), creditor can commerce enforcement proceeding pertaining to bill exchange and this is the second type of enforcement proceeding without judgement. As the last and an exceptional (in cases of non-payment of rent and termination of the lease term), eviction of immovable property can be subject to enforcement proceeding without judgement.
Finally, creditor must bring an action or commence enforcement proceeding against the debtor who does not perform the debt at own will.