What is Seizure?
Seizure is the legal seizure of the debtor’s property, rights and receivables by the enforcement office in order to obtain a monetary receivable.[1] As can be understood from the definition, the primary condition of the seizure is that the subject of the seizure is a money receivable. Secondly, the asset values to be seized in order to obtain a monetary receivable must be the asset values of the debtor. In other words, in accordance with the personality principle, it is not possible to seize another person’s assets due to one person’s debt. In addition, the process of seizing the debtor’s assets in order to obtain the money receivable is not an actual seizure but represents a legal seizure. Finally, the enforcement office is the authority that will legally seize the assets of the debtor in order to obtain a monetary receivable.
Can All Kinds of Property, Rights and Receivables Belonging to the Debtor Be Seized?
The subject of seizure consists of assets belonging to the debtor that are transferable and have economic value. For example, property values that cannot be transferred, such as personal usufruct rights, cannot be subject to seizure. What is meant here by the concept of assets with economic value is that if sold, the proceeds cover the costs of preservation, sale and conversion into cash. It should be noted that the economic value in question must have a legal basis. In addition, in order for an asset value belonging to the debtor to be subject to seizure, the seizure of the asset value in question must not be partially or completely prohibited.
In accordance with Article 85 of the Enforcement and Bankruptcy Law, an amount of the debtor’s movable and immovable property, receivables and rights to cover the debt is seized. As a rule, all kinds of property and rights of the debtor can be seized. Which goods cannot be seized, partially or completely, is listed as a limitation in the Enforcement and Bankruptcy Law, and all goods and rights belonging to the debtor, other than those listed and for which there is no regulation stating that they cannot be seized by any special law, are subject to seizure.[2]
Seizure of Business License
In practice, it is seen that, upon the request of the creditor, the enforcement office decided to seize the business license of the debtor company, then the debtor applied to the enforcement court to request the removal of the seizure. The decision of the courts without evaluating whether a business license is an asset that can be seized is the subject of Supreme Court decisions.
• Decision of the 12th Civil Chamber of the Supreme Court of Appeals, Dated 22.02.2017, Numbered 2016/11364, Decision No. 2017/2436;
In this case, the court should first open a hearing, taking into account the nature of the complaint, and after establishing a party, the claims and evidence of the parties should be collected, and in particular, by writing to the relevant institutions and organizations, the legal nature of the non-sanitary establishment license should be determined whether it has economic value on its own, apart from the structure of the gas station. It should be asked whether it is possible to transfer it alone and separately from the fuel station, and also by examining the legislation on this subject, if it is concluded that the non-sanitary establishment license has a separate and independent economic value from the fuel station, which is a commercial enterprise, and that its transfer alone is possible, it can be seized. Otherwise, it should be decided according to the result that will occur by accepting that seizure is not possible, but it is inappropriate to make a decision in writing with incomplete examination without taking this issue into consideration.[3]
The court wrote a letter to the Ministry of … and asked about the legal nature of the hospital operating license, whether it has economic value on its own, separate from the hospital building, and whether it is possible to transfer it separately from the hospital, and the Ministry of … In the response to the letter dated 09/11/2015, “….the license transfer could be made until 21/03/2014 without requiring the private hospital to be actively operating. As of 21/03/2014, when the regulation change was made, for the license transfer, the transfer, that is, the change of ownership, of a private … organization that is not actively operating (hospitals whose activities have been suspended), since it is mandatory for the private … organization to be actively operating as of the transfer date is not possible. In this context, if the sales transactions of the private establishment license were initiated by the enforcement office before 21/03/2014, the license transfer can be carried out without the requirement to be actively operating on the request date. Otherwise, it is not possible to transfer organizations whose licenses are suspended, even through enforcement. Those that are not actively operating as of the date of transfer (hospitals whose activities have been suspended), that is, those that do not provide services to citizens, cannot be transferred and in this context, it has been evaluated that they cannot be subject to sale within the framework of the Enforcement and Bankruptcy Law. It is seen that the answer is “It is possible to sell actively operating … organizations within the framework of the Enforcement and Bankruptcy Law…”.
In this case, the license transfer of the … organization is subject to the condition of being actively operating as of the transfer request date. Hospitals that are not actively operating as of the transfer date (hospitals whose activities have been suspended) will not be transferred. However, if the date of obtaining the private establishment license is before 21/03/2014, it is possible to transfer it without the requirement of active activity, so it will be possible to sell it due to its economic value through enforcement, provided that it is seized before this date. Accepting otherwise will result in loss of rights.[4]
Conclusion;
In its aforementioned decisions, the 12th Civil Chamber of the Supreme Court of Appeals found it inappropriate to decide on a business license without making an evaluation as to whether it is an asset that can be seized or not on the grounds of incomplete examination.
According to the Supreme Court, it is necessary to first write to the relevant institutions and organizations and ask whether the license has a separate economic value from that workplace and whether it can be transferred independently from the workplace. If it is concluded that the license has a separate and independent economic value from the business and that its transfer is possible on its own, it can be seized; otherwise, it must be decided that it is not possible to seize it. Therefore, upon the response of the relevant institution and organization that the license can be transferred independently of the business and has a separate economic value, the court must decide to accept the license as an asset that can be seized.
In terms of private hospitals, there may be exceptions due to changes in regulations. In private hospitals, the transfer of the license (or the license being accepted as an asset that can be seized) is conditioned on active operation. However, license transfer is possible without requiring active activity before 21.03.2014. Therefore, since it is possible to transfer a business that was not actively operating before this date, it is also possible to seize the license to open and operate a business.
REFERENCE
Atalı, Ermenek, Erdoğan, İcra ve İflas Hukuku, Ankara, Yetkin Publisher, 2021, p.185
Decision of the 12th Civil Chamber of the Supreme Court of Appeals, Dated 22.02.2017, Numbered 2016/11364, Decision No. 2017/2436
Decision of the 12th Civil Chamber of the Supreme Court of Appeals, dated 22.10.2019, Numbered 2018/11637 and Desicion No. 2019/15477
Enforcement and Bankruptcy Law and relevant Legislation
[1] Atalı, Ermenek, Erdoğan, İcra ve İflas Hukuku, Ankara, Yetkin Publisher, 2021, p.185
[2] Decision of the 12th Civil Chamber of the Supreme Court of Appeals, Dated 22.02.2017, Numbered 2016/11364, Decision No. 2017/2436
[3] Decision of the 12th Civil Chamber of the Supreme Court of Appeals, Dated 22.02.2017, Numbered 2016/11364, Decision No. 2017/2436
[4] Decision of the 12th Civil Chamber of the Supreme Court of Appeals, dated 22.10.2019, Numbered 2018/11637 and Desicion No. 2019/15477