In order to protect the debtor during the enforcement proceedings, vacation and postponement cases are envisaged. In the presence of vacation and postponement reasons, enforcement proceedings cannot be carried out against the debtor. Since it is counted as vacation hours and days, the enforcement proceedings may not be carried out, and there are also reasons that require the postponement of the enforcement proceedings. The death of one of the debtor’s relatives and the cases of severe illness can be cited as examples of postponement.
In this bulletin, we focus on these periods and reasons for postponing the enforcement proceedings against the debtor.
İçindekiler
1. What is the Enforcement Proceeding Process?
In cases of vacation and postponement, the entire enforcement proceedings do not halt. Only the enforcement proceedings against the debtor halts. For this reason, in order to be able to understand the subject, it has been found useful to first focus on the enforcement proceedings.
In the process of enforcement proceedings, many actions are carried out by the parties to the proceedings, the enforcement bodies and sometimes the courts. However, not all of them are enforcement proceedings, some of them are called party proceedings. In order for a proceeding process to be qualified as an enforcement proceeding;
It must be performed by the enforcement bodies. What is meant by enforcement bodies is enforcement offices and courts.
The action must be performed against the debtor. Actions against the creditor or third parties are not enforcement proceedings. The addressee of the action must be the debtor.
The proceeding must be of a nature that brings the creditor one step closer to her/his right to claim and harms the legal status of the debtor. With the performance of the action, enforcement proceedings should proceed in favor of the creditor and against the debtor.
As an example of enforcement proceedings in the light of what has been told; sending a payment order to the debtor, sending an executive order to the debtor, making a lien and other seizure transactions, sales transactions, making a warehouse decision, granting an extension (time) to the debtor.
However, for example, the distribution of money, which is a transaction for creditors, is not an enforcement proceeding. Because here the addressee of the transaction is not the debtor. Again, requests such as proceeding, foreclosure and sales requests made by the creditor are not considered as enforcement proceedings since they are not made by an enforcement body. For this reason, the creditor may also make claims such as proceeding, sale and seizure in cases of vacation and postponement; however, as long as the vacations and postponement continue, the enforcement bodies cannot act in line with these demands. As a rule, no enforcement proceedings can be carried out in cases of vacation and postponement.
2. Vacation Periods
What is normal and usual on vacation hours and days is the suspension of all official actions. Enforcement proceedings are also suspended during vacation periods. The vacation hours and days are tried to be explained briefly below;
The vacation hours are specified in EBL article 51. Accordingly, these hours, which are called night time; It refers to the time between one hour after sunset and one hour before sunrise. Since night time is considered a vacation time, as a rule, no enforcement proceedings can be carried out during this time period. But the Law regulates some exceptions to this situation. According to this; In workplaces that work at night, a revenue attachment can be made at night. Examples of these places are places such as bars, entertainment venues, cinemas. Apart from this, if it is understood that the debtor has smuggled goods, it is possible to perform a seizure even at night.
In addition to night time, enforcement proceedings cannot be carried out on public vacations. However, it is an exception to this rule that attachments and notifications can be made on public vacations. Likewise, it is possible to take measures of conservation on vacations.
Another issue is that the provisions of judicial recess are not applied in the enforcement and bankruptcy offices and the enforcement court. For this reason, judicial recess will not have any effect on the proceeding law and time periods.
3. Postponement Cases
Postponement cases are cases in which enforcement proceedings should be postponed due to the special circumstances of the debtor.
These are described separately below;
In case of death of one of the debtor’s relatives;
If the debtor’s spouse or one of his descendants (such as mother, father, child, mother-in-law, mother-in-law, father-in-law) dies, the proceedings against the debtor are postponed for three days, together with the day of death (EBL article 52). It should be noted that there will be no postponement in the event of the death of siblings.
In case of death of the debtor;
If the debtor dies during the enforcement proceeding, if the legal heirs openly accept the inheritance, the enforcement proceeding is postponed for 3 days. The 3-day period also includes the day of death. If a declaration of intention is not made by the heirs in the form of acceptance or rejection, enforcement proceedings cannot be carried out for 3 months, which is the rejection period of the inheritance. (EBL article 53).
In case the debtor is seriously ill;
If the debtor is suffering from such a serious illness that he/she cannot appoint a representative, the bailiff may continue the proceedings against the debtor and postpone the execution of the enforcement proceedings for an appropriate period. (EBL article 55). This period will last until the debtor who has suffered a serious illness has recovered sufficiently to appoint a representative. Severe illness must be proven with documents.
In the event that the debtor is a soldier;
During the military service, in the proceedings against privates, corporals and detachment sergeants (except for specialist or extended sergeants and corporals), the bailiff gives him/her a suitable period to appoint a representative and leaves the proceeding to the expiration of this period. For those who do not designate a representative and notify the enforcement office within this period, enforcement proceedings are continued. (EBL art. 54/a).
Enforcement proceedings cannot be made against the debtor during the respite of concordat and restructuring by compromise.
If the debtor is likely to smuggle goods, even if she/he is seriously ill or a soldier, the execution proceedings cannot be stopped by considering it as a state of suspension.
In case the debtor is detained or convicted;
In proceedings against a detainee or convict without a representative, unless the appointment of a representative belongs to the guardianship authority, the bailiff gives an appropriate time to determine a representative and leaves the proceedings to expire after this period. For the arrestees or convicts who do not appoint a representative and notify the enforcement office within this period, the proceedings will continue. (EBL article 54).
4. How Do Vacations and Postponements Affect the Duration?
In order to resolve the enforcement proceedings quickly and easily in enforcement law, certain periods are stipulated in the Law. These periods are definite and constitute a final term. Knowing and calculating the deadlines is of great importance in terms of not losing rights in enforcement actions.
Periods will continue to run on public holidays. If the last day of the period coincides with a public holiday, the period automatically extends until the first day following the holiday. The periods expire at the public holiday time of the last day.
“According to the DJC and EBL 19/1 dated 22.06.1966 and numbered 1966-8/8, The first day of notification of the warning is not taken into account in the calculation of the 30-day period stipulated in Article 315 of the Turkish Code of Obligations. In addition, according to the provision of article 19/3 of the EBL, if the last day of the period coincides with an official vacation, the period ends on the day following the vacation.[1]
“…it is also regulated that the public holidays are included in the period, and if the last day of the period coincides with the public holiday, the period will end at the holiday hour of the first following business day. As a result, if the last day of a month’s period coincides with a vacation, it must be accepted that the notification made until the vacation time of the following business day is made within the time limit.[2]
In cases of postponement, if the last day of a period stipulated for the debtor or enforcement bodies coincides with a postponement day, the period is extended by 1 more day from the end of the postponement. (EBL article 56).
Conclusion
During the enforcement proceedings, the actions to be taken against the debtor by the enforcement bodies cannot be carried out during the vacation and postponement periods. Although this is the rule, we have also discussed above that there are some exceptions to this situation.
You can contact our team for any questions you have about vacation and postponement times.
Best Regards.
Solmaz Law and Consultancy Team.
References
KURU, Baki, (2016), İcra ve İflâs Hukuku, Legal Yayıncılık, s.71-74.
PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, (2015), İcra ve İflâs Hukuku, Yetkin Yayıncılık, s.117-119.
12nd Civil Chamber of the Supreme Court, E.2002/7043, K.2002/8237.
SCACC Resolution dated 4.3.2009 and numbered E.6/74 K.98
Enforcement and Bankruptcy Law
[1] 12nd Civil Chamber of the Supreme Court, E.2002/7043, K.2002/8237.
[2] SCACC Resolution dated 4.3.2009 and numbered E.6/74 K.98
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