Türkiye Adalet Akademisi Dergisi

Yazarlar: Didem BAŞAR

Konular:Hukuk

Anahtar Kelimeler:Environmental damages,Tort,Liability based on fault,Strict liability,Competition of liabilities

Özet: In our responsibility law, the principle is the responsibility of defect. In this context, it is not possible to blame the perpetrator of the tort without any flaws. Exceptions to the liability of defects are regulated in both the Turkish Law of Obligations No. 6098, the Turkish Law of Civil No. 4721, and special laws. The legal responsibility of polluting the environment is an example of these exceptional circumstances. The special regulation regarding the responsibility of polluting the environment is included in the article 28 of the Environmental Law No. 2872, although the provisions regarding the responsibility of the building owner, which is regulated as flawless responsibilities in the TBK article 69, and the responsibilities of the owner of the property regulated in TMK article 73, are also tangible, it finds application in cases where it conforms to the nature of the event. However, regarding the provisions of the TCC article 71, which regulates the hazard responsibility in general, special laws such as Petroleum Law No. 6326 and Turkish Civil Aviation Law No. 2920 can also be applied under the responsibility of the polluter. Although there is no consensus in the doctrine regarding the legal nature of the responsibility of the polluter, there are different opinions regarding the legal nature of the responsibility, the responsibility based on the principle of aggravated cause, responsibility based on the principle of sacrifice, danger responsibility and mixed responsibility. The tangible event, which creates the responsibility of the polluter, can be based on the defective behavior of the polluter, as well as cases requiring different flawless responsibilities. In this case, it is important to which cause of responsibility the pollutant can bear. In accordance with the provisions of the TBK Article 60; Unless the judge has asked for the contrary to be damaged or otherwise provided for in the law, the judge will decide according to the reason for the responsibility that provides the best remedy to the injured person. The resulting damage (pollution) is caused by both a hazardous operating activity, and if the liability arises within the scope of ÇK m.28 / II and the damage is based on the defect of the polluter, the damage is based on the general provisions of the unfair act based on the flaw according to TBK m.71 and ÇKm.28. less favorable. Since both responsibilities are perfect, they are in favor of the injured. Which of these two responsibilities will be evaluated in the context of a tangible event in favor of the injured.

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