Türkiye Adalet Akademisi Dergisi
Yazarlar: Şafak NARBAY, Muhammed AKKUŞ
Konular:Hukuk
Anahtar Kelimeler:Commercial affair,Consumer transaction,Consumer court,Commercial case,Mediation as a cause of action.
Özet: The notion of commercial affair is defined in articles 3 and 19 of the Turkish Commercial Code No: 6102 (TCC). According to article 3 of the TCC, in order to qualify an affair as commercial, the affair in question must either be regulated in the TCC or be a transaction or an act involving a commercial enterprise. Furthermore, in article 19 (1) of the TCC, the debts of a trader are deemed commercial, based on the assumption that the debts are related to its commercial enterprise. On the other hand, in Consumer Protection Code No. 6502 (CPC), “consumer transaction” has been regulated quite extensively under article 3 (1)-l. Furthermore, it has been stipulated that, presence of a regulation in other Acts in relation to a transaction which a consumer is a party to will not prevent the said transaction to be acknowledged as a consumer transaction and enforcement of the provisions of CPC regarding duties and powers (art. 82/2). As a result of these regulations, the characteristics of “commercial affair” and “consumer transaction” intersect. Therefore, making the proper distinction between a commercial affair and a consumer transaction is of utmost importance in determining the provisions applicable to the subject affair/transaction, characterization of the dispute and identifying the competent court. According to article 73/1 of CPC, consumer courts are competent in relation to disputes arising out of consumer transactions and practices aimed at consumers. However, the fact that the dispute arises from a consumer transaction or that it will be tried before a consumer court does not prevent the qualification of the dispute as commercial. Indeed, mostly the disputes arising out of consumer transactions are commercial cases which causes problems. On the other hand, as per regulations of CPC, disputes arising out of consumer transactions which are in excess of certain monetary limits, are required to be tried directly before consumer courts on the grounds that the same do not fall into the purview of consumer arbitration committees. As discussed above some of these disputes are commercial cases. Therefore, in view of article 5/A of TCC, the question of whether these disputes be subject to mediation as a cause of action arises. An addition to CPC, article 73/A with the heading “Mediation as a cause of action”, is proposed through article 59 of “Bill of Amendments to Civil Procedure Law and Certain Laws”, whose status has been “Before Commission” during the course of this study. The said proposed article regulates application to mediation as a perquisite for filing suit in relation to some disputes which do not fall into the purview of consumer arbitration committees and to be tried directly before consumer courts as a cause of action. Although in our view, even in the absence of the proposed article 73/A, under article 5 of TCC application to mediation as a perquisite before filing suit is a cause of action in connection with the disputes which are commercial cases and are required to be tried before consumer courts provided that said disputes are pecuniary claims or claims for damages. However, in the event that the proposed bill is passes and CPC is amended by addition of abovementioned article 73/A, it will be required to act in accordance with the said article in connection to disputes which are commercial cases and are required to be tried before consumer courts. In our study, first of all the notion of commercial affair and the distinction between commercial and non-commercial affairs will be emphasized. Furthermore, the distinction of commercial affair-consumer transaction will be discussed in light of Court of Appeal decisions and finally views will be expressed on the relation of consumer transactions, commercial cases and mediation as a cause of action.