POSTPONEMENT-OF-EXECUTION PROCEDURE ACCORDING TO THE LAW NO 7343 ON AMENDMENT OF THE ENFORCEMENT AND BANKRUPTCY LAW AND CERTAIN OTHER LAWS
Postponement-of-execution is a legal way that allows the debtor to stop the progress of an enforcement proceeding initiated on the basis of a judgment or a document in the nature of a judgment. The postponement-of-execution procedure is regulated by Article 36 of the Enforcement and Bankruptcy Law. According to the Article 36: if the debtor, who appeals against the judgment, proves that the judgmental money or goods are deposited to an official authority, or if the debtor shows movable pledges or shares or bonds or immovable pledges or a valid bank guarantees valued as the judgmental money or goods and those will be accepted by the enforcement court, or if the debtor's property to cover the money and goods is seized a suitable period is given to debtor by the enforcement office to take a decision from the Regional Court of Appeal or the Court of Cassation for the postponement of execution. This period can only be extended if necessary.
After the debtor is duly notified of an enforcement order initiated on the basis of the judgment, the debtor may take a postscript, which is a document stating that the debtor's request for the postponement of execution has been presented to the court and the court has approved the debtor’s request. In order to be able to get the postscript, the request for postponement of execution must be clearly stated in the petition of appeal and the appeal fees must be paid.
After the court documents by the postscript that the debtor has appealed, the postscript is presented to the enforcement office that carries out the enforcement proceedings, and the amount of the guarantee to be deposited is calculated by the enforcement office. The guarantee required to be presented is determined to cover the current debt in the enforcement file and plus, in practice, three months’ future interest on that debt. Based on the amount calculated by the enforcement office, the guarantee is included in the enforcement file with the request for a certificate of limitation within seven days following the notification of the enforcement order. If a letter of guarantee is presented by the debtor, the compatibility of the letter of guarantee is examined by the enforcement court with which the enforcement office is affiliated.
Law No 7343 on Amendment of the Enforcement and Bankruptcy Law and Certain Other Laws (“Law 7343”) was adopted on 24 November 2021 and entered into force after being published in the Official Gazette on 30 November 2021. Before the amendment, once the compatibility of the guarantee was decided, the certificate of limitation of time was obtained from the enforcement office until the postponement-of-execution decision was taken by the Regional Court of Appeal or the Court of Cassation. Afterwards, the debtor presented the certificate of limitation of time to the file of the first instance court and ensured that this file was sent to the Regional Court of Appeal or the Court of Cassation, which would examine the appeal request and issue a decision on the postponement of execution. Following the decision of the higher, the debtor would pay the fee for the postponement-of-execution decision to the court file. Both the postponement-of-execution decision and the document showing payment of the fee for the postponement-of-execution decision were presented to the enforcement file. This is how the suspension of the enforcement proceedings were requested.
With the amendment made by Law 7343, in accordance with Article 36 of the Enforcement and Bankruptcy Law, the postponement of execution now is not granted by the higher court, but by the enforcement court in the place where the enforcement office is affiliated. With this amendment, the postponement-of-execution decision will be taken from the enforcement law court, which evaluates the compatibility of the letter of guarantee together with the certificate of limitation of time taken from the enforcement office by the debtor. The following steps must be followed sequentially in order to obtain a postponement-of-execution decision from the enforcement law court:
1) Following the issuance of the certificate of limitation of time by the enforcement office, an application will be made to the enforcement law court by paying the fees.
2) In the event that the postponement-of-execution decision is granted by the enforcement court, the postponement-of-execution decision will be presented to the enforcement office.
3) After all these steps, the postponement-of-execution procedure will be completed. In addition, as before, the postponement-of-execution decision fee will not be paid to the court file that made the decision subject to enforcement proceedings.
Another important amendment is the clarification of how long the effect of the postponement-of-execution decision will last. In the old regulation, there was no such provision. With the enactment of Law 7343, the subject is regulated by Article 36 of the Enforcement and Bankruptcy Law No. 2004. In accordance with the old article text: in the event that the application is rejected on the merits by the Regional Court of Appeal or the decision is upheld by the Court of Cassation, the money subject to the guarantee is paid to the creditor upon the request of the creditor without the need for any further action. Property and rights are converted into money by the enforcement office according to the type of property. The creditor of the judgment has the right of priority over the guarantee. The recent amendment added a statement that the effect of the postponement-of-execution decision will continue until the expiration of the appeal procedure, in case the appeal is open against the decision of the regional court of appeal regarding the rejection of the application.
The recent amendments enacted by Law 7343 aim to solve the problems experienced in practice and to carry out the postponement-of-execution procedure more quickly and effectively. In addition, it is intended to reduce the workload of both the Regional Court of Justice and the Court of Cassation, and to prevent the loss of time in judicial activities. Also, the uncertainty about how long the effect of the postponement-of-execution decision would last has ended been eliminated.
ISIKAL LAW OFFICE
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