WHAT ARE THE AMENDMENTS INTRODUCED REGARDING THE “SUBMISSION AND EVIDENTIALITY OF COMMERCIAL BOOKS? 30 October 2020
Many changes have been made in the Code of Civil Procedure numbered 6100 with the Law No.7251 Amending the Code of Civil Procedure which published on 28.07.2020 dated and 31199 numbered Official Gazette. An example of these changes is the Article 222 paragraph 3 of the Code of Civil Procedure which is regulating the procedures of submission of commercial books to the court as an evidence. |
What Is Commercial Book? |
Commercial books, according to the regulation under the 64th article of Turkish Commercial Code numbered 6102, are defined as the documents, that merchants are obliged to keep regarding their business, which can create an opinion in a reasonable time period for third party experts who are investigating the operations and financial status of the organization. Liability of keeping commercial books starts with the establishment of the organization and expires after the end of liquidation of the organization. |
Are Commercial Books Reliable As An Evidence In Courts? |
Commercial books consisting of records containing the transactions that have consequences in commercial life of real and / or legal persons, have a major role in merchant’s or organization’s supervision and management. In addition, commercial books can be examined because they have the quality to enlighten the dispute arising from the relationship in which a merchant or a commercial organization is a party. |
In other words, commercial books have evidential value in courts. Commercial books can also be used in favor of or against the owner as an evidence to clarify the disputes. |
Are Commercial Books Accepted as Final Evidence or Discretionary Evidence? |
In commercial cases, if legal transactions cannot be proved by final evidences or discretionary evidences, or if it is undesirable to prove by, commercial books can be used instead. |
Evidential status of commercial books is controversial and they are not defined as final or discretionary evidence in the Code of Civil Procedure and it is only mentioned that they can be used in favor of or against the owner. |
In some decisions of the Supreme Court, it is observed that commercial books are used as evidence while the characteristics of evidence are determined according to the documents that are attached to the commercial books. |
How It The Procedure of Submitting The Commercial Books to Court As Evidences? Does Every Commercial Book Provide the Qualification to Be Evidence? In Which Cases Commercial Books Constitutes Evidence In Favor of the Owner? Who Is Authorized to Ask for Submission of Commercial Books to the Court? |
According to the article 222 paragraph 1 of the Code of Civil Procedure numbered 6100, in case of dispute resolution, court can decide to ask for submission and investigation of commercial books spontaneously or on demand of one of the parties. |
According to the Code of Civil Procedure Numbered 6100, What Is the Criteria for Commercial Books to Be Accepted As Evidence? |
It is sought to comply with the provision of Article 222, paragraph 2 of Code of Civil Procedure numbered 6100 for commercial books to be accepted as evidence in commercial cases which is stating that commercial books shall be kept fully and correctly, opening and closing approvals should have been made and the books records should have confirmed each other. |
In Order to Use the Commercial Books in Favor of the Owner, Which Criteria Shall Be Met? |
Within the general principle of law, it is not possible for a document prepared by a person to be considered as evidence in this person’s favor. As it is seen, it is an exceptional situation to be count as evidence in favor of the owner of the commercial books. |
In order to be evidence in favor of the owner, commercial books shall meet a number of conditions at the same time. These conditions are regulated in the article 222 paragraph 3 of the Code of Civil Procedure which is named “Submission and Evidentiality of Commercial Books” by stating that "the records in the commercial books of the other party kept in accordance with the same conditions are not contrary to these or contain no records in the relevant matter, or the contrary is not proved by promissory notes or other definitive evidence." |
In other words, as the article 222 states, in order to consider commercial books as evidence in favor of the owner, |
|
In the Scope of HMK, What Are the Amendments Introduced In the Criteria for Commercial Books to Be Evidence In Favor of the Owner With The Law No. 7251 Entered Into Force? |
Article 23 of Law No.7251 Amending the Code of Civil Procedure, which entered into force on 28.07.2020, has made an amendment and supplementation on the article 222, paragraph 3 of the Code of Civil Procedure. |
Previously, one of the conditions required by the law was that there were no records on the relevant issue in the commercial books of the other party kept in accordance with the same conditions. However within the scope of the amendment introduced on 28.07.2020, instead of this condition; it is required that the other party has not submitted its commercial books. |
After the amendment made on 28.07.2020, there is also an supplementation on the same paragraph which states that commercial book kept in accordance with the conditions cannot be used as evidence in favor of the owner if does not contain any records on the relevant issue. |
In this case, after the amendment and supplementation made by law no 7251, in order to use commercial books as evidence in favor of the owner, new conditions can be listed as; |
|
Since the record of the non-existent transactions cannot be kept, changes have been made due to the weight of the burden of proof. In this respect, making a decision against the other party with the record in the commercial book of only one party is abandoned. And the wording of the relevant article has been changed to result in the detriment of the party that does not actually fulfill the burden of proof by not presenting its commercial book. Thanks to the change, integrity with the other law provisions about the burden of proof has been achieved. |
Other News
-
15.3.2024
New Regulations Introduced With The 8th Judicial Package
The Law No. 7499 on the Amendment of the Code of Criminal Procedure and Certain Laws ("Law"), which contains amendments and new regulations known as the "8th Judicial Package", was published in the Official Gazette dated 12 March 2024 and numbered 32487. In this article, we will discuss the amendments to the Criminal Procedure Code No. 5271 (" CPC"), Turkish Criminal Code No. 5237 ("TCC"), Turkish Civil Code No. 4721 ("TCC"), Enforcement and Bankruptcy Code No. 2004 ("EBC") and Law No. 6384 on the Duties and Working Procedures and Principles of the Compensation Commission.
-
12.3.2024
Changes In The PDPL Was Published In THE Official Gazette
Law No. 7499 on Amendments to the Code of Criminal Procedure and Some Laws ("Law No. 7499") including critical amendments to the Law No. 6698 on the Personal Data Protection Law ("PDPL") was published in the Official Gazette on March 12, 2024.
-
9.2.2024
Amendments Were Made To The Regulations Based On The Occupational Health And Safety Law
In the Official Gazette dated 4 February 2024 and numbered 32450, amendments were made to some regulations issued based on the Occupational Health and Safety Law No. 6331:
-
1.2.2024
Turkish Competition Board Mergers And Acquisitions Outlook Report For 2023 Has Been Published
On January 5th, 2024, the Turkish Competition Authority has published the Report prepared by the Competition Board on Mergers, Acquisitions And Privatisation Transactions in 2023 ("Report").
-
31.1.2024
Important Principle Decision From The Advertising Board Regarding Discount Sale Advertisements
At the first meeting of the year held on January 9, 2024, the Advertising Board made an important principle decision regarding discount sale advertisements by amending the "Guideline on Advertisements Containing Price Information and Discount Sale Advertisements and Commercial Practices" in order to prevent consumer victimization through misleading advertisements and practices that lead to unfair competition in the retail trade sector.
-
17.1.2024
The Authority to Decide on Trademark Cancellation Passed to the Turkish Patent And Trademark Office!
In Article 192/1 (a) of the Industrial Property Law ("IPL") published in the Official Gazette dated 10 January 2017 and numbered 29944, the enforcement of Article 26 of the Law titled "Cancellation Cases and Cancellation Request" was postponed until seven years later, and with the Provisional Article 4 of the IPL, it was stipulated that the authority to decide on the cancellation of trademarks would be directly exercised by the Intellectual and Industrial Rights Civil Courts until 10 January 2024.
-
16.1.2024
Egemenoğlu Hukuk Bürosu / Internship Application
We are pleased to announce the opening of internship applications at Egemenoğlu Hukuk Bürosu. Legal Internship Application Deadline: March 15 Summer Internship Application Deadline: March 29 Prospective candidates are requested to submit their CVs either through our website www.egemenoglu.av.tr or by sending them to info@egemenoglu.av.tr.
-
12.1.2024
Turkish Sustainability Reporting Standards (TSRS) And Scope Of Application Of TSRSs Were Puslished In The Official Gazette
In the Official Gazette dated 29.12.2023 and numbered 32414, the Public Oversight, Accounting and Auditing Standards Authority (POA) announced the Turkish Sustainability Reporting Standards and determined the principles to be followed in sustainability reports.
-
11.1.2024
Important Regulations Which Are Effective As Of 2024 And/ Or Has Been Made Subject To Time Extension
Laws No. 5746 and No. 6550 extended the regulation on higher depreciation (showing expenses related to depreciation) and calculation rates and periods for new machines acquired for use in R&D, innovation and design activities.
-
19.12.2023
The Principles and Rules to be Applied in Retail Trade have been reorganize
With the "Regulation Amending the Regulation on Principles and Rules to be Applied in Retail Trade" prepared by the Ministry of Commerce and published in the official gazette on 14.12.2023, significant changes were made in the principles and rules of retail trade.
-
18.11.2023
Warning From The Authority On Sending Verification Codes To Customers Via Sms During Shopping
The Personal Data Protection Authority ("Authority") published a Public Announcement ("Announcement") on the Processing of Personal Data by Sending a Verification Code via SMS to the Data Subjects during Shopping in Stores.
-
14.11.2023
Communiqué Amending the Communiqué on the Procedures and Principles Regarding the Application of Article 376 of the Turkish Commercial Code No. 6102 has been published
In order to regulate the procedures and principles to be followed in cases of loss of capital or insolvency of joint stock companies, limited liability companies and limited partnership companies with capital divided into shares within the scope of Article 376 of the Turkish Commercial Code No. 6102 (Law), the Communiqué on the Procedures and Principles Regarding the Application of Article 376 of the Turkish Commercial Code No. 6102 (Communiqué) was first published in the Official Gazette dated 15/09/2018 and numbered 30536, and with the Provisional Article 1 of this Communiqué until 01/01/2023, Within the scope of Article 376 of the Law, it was stated that foreign exchange losses arising from foreign currency denominated liabilities that have not yet been fulfilled may not be taken into account in the calculations regarding capital loss or insolvency.
-
3.11.2023
Law No. 7464 on the Leasing of Houses For Tourism Purposes And Amendment To Certain Laws Has Been Published
Published in the Official Gazette dated 2.11.2023 and numbered 32357 and published in the Official Gazette dated 2.11.2023 and numbered 32357, the Law on the Leasing of Houses for Tourism Purposes and Amendments to Certain Laws (No: 7464) aims to determine the procedures and principles regarding the leasing of houses to real and legal persons for tourism purposes.
-
28.10.2023
Partial Payment Period In Pension: Regulation On Partial Payment In The Private Pension System Has Been Published
With the amendment made to the Private Pension Savings and Investment System Law on 19.01.2022, a regulation was introduced stipulating that the participant can be partially paid up to fifty percent of the accumulation amount in his account, excluding the amounts in the State contribution account, without leaving the system, in cases and conditions determined by the Insurance and Private Pension Regulation and Supervision Agency. In this case, payments can also be made from the amount in the State contribution account, not exceeding twenty-five percent of the partial payment amount and the principles and procedures regarding the transactions to be carried out within this scope, including the practices regarding the State contribution, will be determined by the Institution with the appropriate opinion of the Ministry and with the amendment dated 19.01.2022, the relevant regulation is included in the Individual Pension Savings and Investment System Law.
-
9.9.2023
Focus On Digital And Green Transformation: Türkiye's Medium - Term Program Published.
The Medium-Term Program (2024-2026), prepared by the Ministry of Treasury and Finance and the Presidency of Strategy and Budget, was approved and published in Official Gazette No. 32301 dated September 6th, 2023.