In the Turkish legal system, there are different temporary protection methods to protect receivables and rights. Two of these methods are provisional seizure and preliminary injunction; Although both are closely related, they have fundamental differences. While interim measures are regulated in the Code of Civil Procedure; Precautionary lien is handled within the scope of the Enforcement and Bankruptcy Law. Before touching on the differences between these two concepts, it is necessary to specifically focus on what provisional lien is.
What is Precautionary Seizure?
Precautionary seizure is the process of imposing a temporary restriction on the debtor's assets by a court decision in order to protect a receivable or claim. It is generally applied to prevent the creditor from being harmed until the case is concluded. With provisional attachment, the debtor's authority to dispose of certain assets is restricted; These goods cannot be sold or transferred to anyone else.
Differences Between Precautionary Seizure and Interim Injunction
Precautionary lien is designed specifically to secure money receivables and is regulated in the Enforcement and Bankruptcy Law. Interim injunction, on the other hand, is included in the Code of Civil Procedure in a wider range as a protection mechanism regulating legal relations.
The applicability of the provisional lien relates to money receivables that are not secured by pledge and are due. This feature shows that the protective effect of the provisional lien within the Enforcement and Bankruptcy Law is limited only to money receivables. This is the most obvious and distinguishing feature of the provisional lien. Additionally, provisional attachment is only possible for receivables that are not secured by pledge and is generally applied to receivables that are due, but this rule is not absolute.
Definition of Precautionary Seizure
Based on Article 257 of the Enforcement and Bankruptcy Law, provisional seizure; It can be defined as the process of temporarily seizing the debtor's assets by court decision in order to secure the results of current or future proceedings regarding money receivables.
In conclusion, the main differences between provisional seizure and preliminary injunction are; It lies in factors such as its application areas, the laws regulating it and the purpose of protection. Precautionary lien, as a more specific protection method, is an important tool, especially for the assurance of money receivables.
Comparison of Precautionary Seizure and Interim Injunction
Within the Turkish legal system, various temporary protection methods are available to protect receivables and rights. Among these methods, provisional lien and preliminary injunction are special protection mechanisms applied for certain situations. As stated in a recent decision of the 11th Civil Chamber of the Supreme Court of Appeals, provisional attachment is considered a special type of precautionary measure and is requested on the basis of Article 257 of the Enforcement and Bankruptcy Law. We can list the main differences between these two protection methods as follows:
1. Difference in Scope: While provisional lien provides protection only for money receivables, provisional injunction can be applied in a wider range without any limitation.
2. Nature of the Regulation: Precautionary lien is a more specialized regulation and is designed especially for the assurance of money receivable. Precautionary measures are a general preventive protection mechanism.
3. Purpose of Protection: Precautionary lien ensures that the creditor will receive money. On the other hand, interim measures provide preventive protection and aim to return the goods in their original form.
4. Results: In the provisional lien application, if a decision is made in favor of the creditor, the seized goods are put up for sale and the income obtained is paid to the creditor. In case of precautionary measures, the property subject to the measure must be returned to its owner.
5. Burden of Proof: In order for a provisional attachment decision to be made, the creditor does not have to prove that his receivable is in danger. The existence of sufficient conditions is sufficient for the decision.
These differences illustrate how provisional liens and preliminary injunctions are designed for different needs and situations in our legal system. While provisional seizure is specifically aimed at protecting money receivables, provisional injunction offers a wider area of protection and has a preventive nature. Both mechanisms are important tools to provide assurance to receivables and rights holders throughout the litigation processes.
Conditions of Precautionary Seizure Application and Exceptional Situations
Precautionary lien is a legal mechanism designed to protect receivables, regulated under Article 257 of the Enforcement and Bankruptcy Law. The basic conditions for the provisional lien to be implemented are listed below:
1. Existence of Money Receivable: In order to request a provisional lien, the creditor must have a valid money receivable.
2. Debt Not Secured by Pledge: The requested monetary debt must not be secured by any pledge.
3. The receivable must be due: As a general rule, the receivable must be due for provisional attachment, but there are exceptions to this rule.
4. Depositing a guarantee to the court: The creditor is required to deposit a guarantee to the court along with the provisional lien request.
Precautionary Seizure for Undue Receivables
According to the general rule of Article 257 of the Execution and Bankruptcy Law, although the receivable must be due for provisional attachment, the exceptional cases specified in the second paragraph of the same article are excluded from this rule. Accordingly, the situations in which it is possible to file a provisional lien for overdue receivables are as follows:
1. The Debtor Does Not Have a Specific Residence: If the Debtor does not have a fixed residence,
2. Preparation to Hide or Escape Their Assets: The debtor is preparing to hide, smuggle or escape his or her assets in order to avoid debt obligations, or engages in fraudulent transactions that violate the rights of the creditor.
Concepts of Maturity and Due Date
In the decision of the Grand General Assembly of the Supreme Court of Appeals Unifying Jurisprudence dated 27.12.2017, it was emphasized that maturity and maturity are different concepts and it was decided that a provisional attachment decision cannot be given for a receivable that is not due. This distinction is important in terms of the applicability of provisional lien, especially for receivables such as bank letters of guarantee.
As a result, the provisional seizure mechanism provided by the Enforcement and Bankruptcy Law is an important tool for protecting receivables and securing creditor's rights. However, in order to use this mechanism, certain conditions and exceptional cases must be taken into account.
Characteristics of the Precautionary Seizure Decision and Relevant Courts
A provisional attachment decision is a decision given by the court upon the request of the creditor and imposes a temporary restriction on the debtor's assets. This process, unlike the litigation process, is subject to a simpler trial procedure and the rule of full proof required in civil trials does not apply here. Some features of provisional lien proceedings and the relevant courts are detailed below.
Features of Precautionary Seizure Judgment
1. The Court's Freedom of Hearing: Article 258/2 of the Execution and Bankruptcy Law. The article states that the court is free to hear the parties upon the request for provisional attachment. This distinguishes provisional lien proceedings from other civil proceedings.
2. Rule of Approximate Proof: The creditor must show the existence of the receivable and, if necessary, the reasons for the seizure, with convincing evidence to the court. This situation shows that the rule of full proof is not required in provisional seizure decisions.
3. Simple Trial Procedure: Precautionary lien proceedings are subject to a simpler trial procedure, which ensures that the process runs faster and more practically.
Competent and Authorized Courts for Precautionary Seizure
- Competent Court: The court authorized to make the provisional seizure decision is determined by Article 258 of the Enforcement and Bankruptcy Law and the reference to Article 50. According to general jurisdiction rules, the competent court is the civil court of first instance or the commercial court of first instance for commercial cases.
- Court in Charge: Generally, civil courts of first instance are authorized for provisional lien proceedings. Commercial courts of first instance are responsible for commercial cases. Civil courts of peace may have jurisdiction over rent receivables.
- Precautionary Seizure After the Case is Filed: If the provisional lien request is made after the filing of a case, the competent court is the court where that case is heard. This may also include special courts (such as labor courts, family courts).
Exceptions and Things to Consider in Application
- A provisional lien decision is generally not given for invoice-based receivables, but if there is an invoice agreement between the parties, a provisional lien decision can also be given for such receivables.
- Precautionary attachment decisions are rarely given for receivables that require trial. However, the Supreme Court has made exceptional decisions stating that a provisional lien may be issued in special cases such as work accidents.
The provisional attachment decision is an important tool for the protection of receivables and ensures the collection of the receivable by placing a temporary restriction on the creditor's assets. This process requires special legal procedures and relevant courts.
Collateral and Decision Content in the Precautionary Seizure Process
Precautionary lien is a temporary restriction imposed by a court decision on the debtor's assets in order to protect the rights of creditors. The obligation to deposit collateral and the content of the decision, which is an important part of this process, are regulated in detail by the Execution and Bankruptcy Law.
Depositing Collateral in Precautionary Seizure
- Importance of Collateral: The creditor who requests provisional lien must deposit collateral with the court. This is a condition determined by Article 259 of the Enforcement and Bankruptcy Law and constitutes a guarantee against damages that the debtor or third parties may suffer during the foreclosure process.
- Guarantee Rate: The law does not clearly specify the amount of guarantee, but in practice an approach of depositing guarantee of 15% of the receivable amount is generally adopted. However, the court may set this rate higher depending on the situation.
- Receivables in the Nature of a Judgment: If the receivable is based on a judgment, no guarantee is required. Whether or not collateral is required for receivables based on a document in the nature of a judgment is left to the discretion of the court.
Content of the Precautionary Seizure Decision
The principles that should be included in the provisional seizure decision are clearly stated in Article 260 of the Execution and Bankruptcy Law. These points are:
1. Name, surname and residence of the creditor and, if necessary, his representative, the debtor,
2. The documents on which the lien request is based and the amount of the receivable,
3. The reason for the seizure,
4. Seized goods or rights,
5. What the creditor is responsible for compensation for the damage and what the guarantee consists of.
The Supreme Court requires that these elements be fully included in the decisions and emphasizes that the decisions may be overturned due to deficiencies. In a decision of the 23rd Civil Chamber of the Supreme Court of Appeals, it ruled that the provisional attachment decisions should be overturned because they were not sufficiently justified and did not meet the necessary elements of the law.
These regulations are important to ensure that the provisional lien process is fair and auditable, while also contributing to the protection of the debtor and third parties. Although provisional lien is an effective protection tool for creditors, the process must be managed fairly and the rights of all parties must be respected.
Execution of Precautionary Seizure Decision and Related Processes
Precautionary seizure is the process of placing a temporary restriction on the debtor's assets in order to protect the rights of the creditor. After the provisional attachment decision is received, the creditor must apply to the competent enforcement office within a certain period of time for the implementation of the decision. Here are the important points about this process and related provisions:
Execution of Precautionary Seizure Decision
- Competent Enforcement Office: The enforcement office that will implement the provisional seizure decision, pursuant to Article 261/1 of the Enforcement and Bankruptcy Law. According to the article, it is the enforcement office in the jurisdiction where the court is located that makes the decision.
- Application Period: The creditor must apply to the relevant enforcement office within 10 days from the provisional seizure decision. If the creditor does not apply within this period, the provisional attachment decision is automatically lifted.
Leaving Movable Goods to the Debtor in Exchange for Collateral
- Article 263 of the Execution and Bankruptcy Law allows seized movable properties to be released to the debtor in return for collateral. This arrangement provides security for the creditor and allows the debtor to protect his assets. The guarantee is determined so that it cannot exceed the amount of debt and expenses.
Execution of Precautionary Seizure Decisions
- The enforcement of provisional attachment decisions is carried out in accordance with the provisions specified in Articles 79 to 99 of the Enforcement and Bankruptcy Law. These provisions contain details on how the foreclosure process will be carried out.
Complaints Regarding Execution
- Complaints regarding the execution of provisional seizure are made to the enforcement court to which the enforcement office that carries out the execution is affiliated, in accordance with the last paragraph of Article 261 of the Enforcement and Bankruptcy Law. This regulation aims to ensure the auditability of the process and the protection of the rights of the parties.
While the provisional lien process constitutes an important protection mechanism for creditors, it is of great importance that the process is run properly and the necessary steps are taken within the specified periods. These processes and related provisions not only ensure that the creditor's rights are effectively protected, but also aim to ensure that the debtor is not unfairly victimized.
Effects of Precautionary Seizure Decision and Removal of Collateral Provision
Preservation is an important protection mechanism for creditors; but this protection does not produce a definitive effect. In particular, a provisional lien does not give the creditor the right to sell the property, but instead serves as a security in the process of collecting the creditor's receivable. Important points regarding the provisional lien and the process of removing this decision are explained below.
Effect of Precautionary Seizure Decision
- No Right to Sell: Precautionary lien does not enable the creditor to gain the right to sell the seized property. This is a basic feature of the provisional seizure and states that the creditor does not have the authority to sell the seized property.
- Finalization Process: After the provisional seizure decision is taken, the creditor must initiate enforcement proceedings or file a lawsuit to finalize the seizure. These steps are aimed at collecting the creditor's receivable.
- Participation Institution: Regarding provisional seizure, Article 268 of the Execution and Bankruptcy Law regulates the participation institution in provisional seizure. This regulation ensures that, in case the property seized with a provisional lien is seized by another creditor, the creditor holding the provisional lien can participate in the seizure within certain conditions.
- No Priority Right: Since the provisional lien is not a priority lien, the provisional lien creditor does not have the right of priority over other creditors. This shows that the provisional lien is in a different position compared to other types of liens.
Removal of Precautionary Seizure in Exchange for Collateral
- Removal by Providing Collateral: The debtor may request the removal of the provisional attachment under certain conditions, in accordance with Article 266 of the Enforcement and Bankruptcy Law. This is possible by providing collateral such as money, acceptable pledge, esham, bond, real estate pledge or a reliable bank guarantee.
- Application Authority: In order to lift the provisional attachment decision, an application must be made to the court that issued the decision before the enforcement proceeding, and to the enforcement court after the prosecution is initiated. This process provides the debtor with a way to remove restrictions on seized assets.
Precautionary lien and removal of this decision processes play an important role in the legal relations between the debtor and the creditor. While these processes protect the rights of creditors, they also allow debtors to take back their assets in return for certain guarantees.
Objection Process to the Precautionary Seizure Decision and Removal of the Objection
The right to object to provisional attachment decisions is granted to debtors and, in some cases, third parties, in order to prevent possible loss of rights that may arise from these decisions. The objection process constitutes an important part of the provisional lien application and is regulated by Article 265 of the Enforcement and Bankruptcy Law.
Objection Right and Duration
- Right of Objection: The debtor may object to the provisional seizure proceedings against him, regarding the reasons on which the provisional seizure is based, the authority of the court and the guarantee. The objection may be directed to decisions made in the absence of the debtor.
- Objection Period: Objection period is 7 days. This period starts from the date of seizure if the seizure was made in the presence of the debtor, or from the date of notification of the seizure report to the debtor if it was made in his absence.
Reasons for Objection
The reasons that the debtor may object to the provisional attachment decision are limited and specific:
1. Maturity of the Receivable: If a provisional attachment decision has been made regarding a receivable that is not due, contrary to the principles determined by the law,
2. Receivable Secured by Pledge: The receivable is secured by pledge,
3. Lack of Collateral: The creditor does not provide the required collateral or provides it incompletely,
4. Lack of Jurisdiction of the Court: The provisional seizure decision is given by a court without jurisdiction.
Objection Process
- Objection of Third Parties: Third parties whose interests have been violated may also object to the reasons or guarantee on which the provisional seizure is based, but they cannot object to the authority of the court. The objection period is seven days from the date they learned about the provisional seizure.
- Objection Petition and Documents: The objector must show all the documents applied in his petition.
- Review with Hearing: The court must conduct a review by holding a hearing upon objection. If the parties do not attend the hearing, the court may make a decision based on documents.
Post-Objection Process
- Appeal: Decisions made upon objection can be appealed to the Regional Court of Justice. The decisions of the Regional Court of Justice are final.
- Non-Stay of Enforcement Procedure: Application for appeal does not stop the execution of the foreclosure process.
The objection process provides an important mechanism to protect the rights of debtors and third parties. This process is designed to ensure that the provisional lien application is carried out fairly and equitably.
Finalization of the Precautionary Seizure Decision and Related Obligations
Precautionary lien is an important legal tool that ensures the security of the creditor's receivables. In order for this process to work effectively, the creditor must take certain steps after the provisional attachment decision is taken. The finalization of the provisional seizure decision and the progress of this process takes place within the framework determined by the Enforcement and Bankruptcy Law.
Precautionary Seizure Before Filing a Lawsuit or Initiating Enforcement Proceedings
- Taking Action Within 7 Days: The creditor must either file a lawsuit or initiate enforcement or bankruptcy proceedings within 7 days after the provisional lien is imposed. Otherwise, the provisional lien becomes invalid.
- Objection to the Payment Order in Enforcement Proceedings: If the debtor objects to the payment order within 7 days, the creditor must take legal action to cancel the objection. In order to cancel or remove the objection, the creditor must take action within 7 days.
Precautionary Seizures Placed After Lawsuit or Proceedings
- New Enforcement Proceedings Requirement: If the provisional seizure is placed after the lawsuit is filed or enforcement proceedings are initiated, the creditor is not required to initiate a new enforcement proceeding.
- Debtor's Objection: If the debtor objects to the payment order, the creditor must act according to the processes mentioned above.
General Obligations and Consequences
- Proceedings with Judgment within 1 Month: When the case is concluded, the creditor must initiate legal proceedings within 1 month from the notification of the court decision.
- Expiry of the Periods: If the creditor exceeds the specified periods, gives up his request for follow-up, if the demand for follow-up is dropped by the expiry of the legal periods, if the case file is removed from the process and is not renewed within 1 month or if the case is proven to be unfair, the provisional lien becomes null and void.
The provisional lien process is an effective tool that the creditor can use to collect his receivables; However, in order for this process to be successful, the creditor must act in accordance with the periods and procedures determined by the Enforcement and Bankruptcy Law. It should be noted that if the creditor does not fulfill these obligations, the provisional attachment decision will be invalid and this will reduce the creditor's chance of collecting its receivable.