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§3. The Liability law

It is necessary to notice, that rules, applicable to debt relationships under the Code of 2007, have undergone the greatest changes in comparison with the Law of 1982 It it is no wonder, considering growth rate of external goods turnover and the general economic activity of Turkish Republic.

Besides, the given changes occur and to this day. As it has already been noted, ratification by Turkish Republic of the Viennese convention of the United Nations about contracts of the international purchase and sale of the goods of 1980 has occurred only in 2010, i.e. already after coming into force of the Code 2007 [314]. Conflict regulation of treaty obligations in the Code of 2007 substantially is based on the approaches fixed in the Roman convention of EU 1980 g. In the Convention the unified European have been formulated

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Conflict rules, applicable to the international contracts. The key rule - in the absence of the agreement of the parties on the competent law and order is provided application of the right of the country most closely connected with the contract.

The general general connecting factor of treaty obligations in MCHP - an autonomy of will of the parties. It is the most flexible form of attachment which application in the maximum degree corresponds to the general principle of freedom of the contract. As the starting moment for regulation of treaty obligations (the concept of treaty obligations of the Convention is not defined) the Roman convention also fixes a principle of an autonomy of will of the parties of the contract: according to item 3 «the contract is regulated by the right selected the parties». The majority of scientists believe, that the term "right" in the Convention means «the state right». Thus, the right selected the parties is a national legal system, and subjects of the contract are connected by all subsequent changes in the given system. As it was already marked, according to item 24 of the Code of 2007, «the obligations following from contracts, come under to regulation by the law clearly selected [315 [316] [317] parties. Choice of law express choice which can be understood with sufficient definiteness from positions of the contract or essential circumstances, also is considered valid », i.e. the will of the parties is supposed meant, prezjumiruemaja. Actual Turkish judiciary practice confirms positions of the given norm. The parties can define, that the law selected them will be applied to all contract or to its part. According to item 24 item 3, choice of law express choice can be made or changed the parties at any time, and choice of law express choice after contracting possesses the retroactive effect. Article 24 of the Code of 2007 should be carried to number of the most important establishments of the Turkish legislator. Its value is defined besides other also by that she urged to play the most essential role in practice of application of conflict rules. In this article in the maximum degree tendencies, characteristic both for modern national laws about MCHP, and for international agreements are reflected. The Turkish legislator managed to make conflict regulation by the most flexible - item 24 positions combine the general and special approaches defined by specificity of separate contractual relations.

The principle «most a close connection» is subsidiary criterion for definition of the right, applicable to contract obligations: according to item 24 item 4 in a case, «if the parties have not chosen an applicable law to the relations following from the contract, the right which is most closely connected with the contract» comes under to application.

Most likely, in connection with acceptance «Rome I» which concretises a principle of "characteristic execution» by means of private presumptions [318]

Practically by all kinds of contracts, in Turkish legislation MCHP respective alterations with a view of rapprochement and integration into EU will be brought. Similar changes have already been undertaken by the Macedonian and German legislator.

Let's consider more in detail legal regulation of separate kinds of obligations according to the Code of 2007

Consumer dogovory

At national legislative level conflict rules about consumer contracts began to be fixed only in the end of XX century International legal regulation of the given relations existed long before they are norms about choice of law express choice concerning the tort liability, caused for the goods (product liability), are known to the world community since October, 1973 when the Convention on the right has been accepted, applicable to responsibility of the manufacturer. Article 26 of the Code of 2007 has fixed conflict regulation of relations with participation of consumers. Consumer contracts concern dogovory concerning acquisition of the goods, rendering of services or delivery of loans in nonprofessional or non-commercial objectives. They come under to regulation according to the law selected the parties, without damage to the minimum protection which the consumer should have according to mandatory provisions of the right of the country of its usual residence. If the parties have not chosen an applicable law, the law of the usual place of residence of the consumer comes under to application. The law of the usual place of residence of the consumer is applied in the following [319 [320] cases: when the contract has been concluded in the country of usual residing of the consumer under the special invitation directed to it, or under the notice, and legal actions which the consumer should make, come under to execution in this country; other party or its representative should accept the consumer order in this country; relations take place under the purchase and sale contract, and the seller should organise a trip to convince the buyer to buy, and the consumer comes to the country, another, than the country where he lives, for placing of the order. The law of the place of permanent residence of the consumer comes under to application to the form of the consumer contract. Under the general rule established in the item 7, transactions can be carried out according to the form provided by positions of the right of the country of a place of execution of the transaction, or by the right, applicable to a transaction being. Thus, item 26 item 3 establishes some other, special conflict approach to the form of the consumer contract.

Estimating norm on regulation of consumer contracts, Turkish researchers call the given norm «separate achievement of the Turkish legislator within the limits of a principle of protection of weakness», specifying, that norm of item 26 korrespondiruet item 29 of Introductory law GGU, and also item 8 «Rome I». In the Turkish doctrine it is noticed, that if the applicable law does not protect interests of weakness it will not be simple to be taken into consideration. Thus it is possible to speak about restriction of the choice of law express choice, however the given norm assumes fastening of the concept of social aspect of the contractual relations apprehended, for example, by the Swiss legislator (Law item 120-121 about MCHP) [321 [322].

Individual employment contracts

Conflict regulation of the international labour relations assumes application of the general categories of a law of conflict, but with essential reservations. As a rule, labour relations in territory of any state submit to its right. The given beginning can be established as a material imperative (item 11 of the Labour code of the Russian Federation); more often it represents fastening of a conflict principle lex loci laboris (item 24 of the Law of Macedonia about MCHP). The state can agree to exclude application to the employment contract of the domestic law and to admit application of the foreign right. The last should have a close connection with the given labour relations, not worsen position of the worker in comparison with the local legislation and not break mandatory provisions of the law of master and servant.

In the Code of 2007 there is the special item 27 devoted to regulation of individual employment contracts. Conflict regulation of individual employment contracts is a short story of the Code 2007 g. As the basic conflict formula the right under the arrangement »is applied«, i.e. the priority is given to choice of law express choice by the employment contract parties. In the absence of choice of law express choice labour relations come under to regulation by the law of the country of a place of usual performance by the worker of the labour activity. If the worker usually works not in any certain country, and constantly carries out the labour duties in the several countries the labour contract comes under to regulation by the country law in which the basic enterprise of the employer is located. In item 27 of the Code 2007 [323]

Influence of the Roman convention of 1980 which also fixes rules about a choice the parties of the contract of the right of the country is distinctly shown, whose laws will be applied to their labour relations. But it does not deprive of the worker of protection by application of mandatory provisions of the right which would be applied if the parties have not made the choice. As a matter of fact, it is a question of a known principle of the law of master and servant - private agreements can improve only position of the worker in comparison with the legislation. This principle admits also the Turkish doctrine [324 [325]. In the absence of an autonomy of will of the parties to the employment contract the country law from which this employment contract (legal relation) has most a close connection, for example, the state right in which the employer takes the usual place stay is applied. In the Commission official report to the project of the Code of 2007 it was noticed, that, formulating the given norm about labour legal relations, developers considered positions of the Swiss Law about MCHP (the item 121), the Introductory law to GGU (item 30), the Roman convention (item 6).

Thus, the given norm completely corresponds to the approach of the European legislator.

Obligations from torts

In the doctrine and practice MCHP usually allocate following basic approaches to definition of the right, applicable to tort liabilities: lex loci delicti, lex fori, proper law and lex loci damni infecti. If any act is considered illegal from the point of view of the right of a place of its fulfilment and creates the obligation in this place, it is quite natural, that such obligation should admit and be exposed to the compulsory

To execution everywhere where the offender can be found out. In many countries (including, in Turkey) the obligations which are growing out of the tort, are in general regulated by the right of a place of fulfilment of an offence (lex loci delicti commissi). According to item 2 of item 34 of the Code of 2007 « If a place in which the tort is made, and a place where the damage is caused, are in the various countries, the country rule of law in which the damage »is caused should be applied, i.e. the principle priority lex loci damni infecti is fixed. The given norm shows influence« Rome II », containing similar position. If the obligations relations which are growing out of the tort, are most closely connected with other country the right of this country (item 34 item 3) comes under to application. After fulfilment of an offence of the party can freely choose the applicable law (item 34 item 5). Law application most a close connection and the right selected the parties, reflects the tendency of refusal of rigid connecting factors in delictual regulation. The given tendency is connected by that in connection with internationalisation process begins now more and more difficult to localise correctly this or that legal relation by means of objective conflict principles on type lex loci delicti commissi.

In the Law of 1982 only one article has been devoted conflict regulation of torts. In the Code of 2007 there is general item 34 and new rules about responsibility for infringements of individual rights (item 35), about a non-contractual liability of the producer of production (item 36), for an unfair competition (item 37), restriction of a competition (item 38), unjust enrichment (item 39). These short stories [326 [327] show aspiration of the Turkish legislator to detailed elaboration of conflict regulation of non-contractual obligations, to differentiation of volumes of conflict rules. Turkish researchers notice, that besides orientation of the Turkish legislator to positions «Rome II» new rules are based on item 135 establishments, 136, 137 and 139 Laws of Switzerland about MCHP. In particular, the claims following from infringement of individual rights by mass media (the press, radio, TV, the Internet), come under to regulation for choice the affected party the law of a place of usual residing of the affected party if the party which has caused a damage, assumed, that the damage will come in this country; the law of the country of a site of the enterprise or the usual place of residence of the affected party; the country law in which the damage has been caused if the affected party could assume, that the damage will come in this country.

The right to the answer concerning infringement of individual rights comes under to regulation by the country right in which the periodical is published or (item 35) is transferred radio-or the television program. Practically identical regulation can be seen in item 139 of the Law of Switzerland about MCHP. Similar legal regulation has been apprehended Chinese and Romanian by legislators as development of new kinds of relations and potential infringements of individual rights in the mass media, complicated by a foreign element, have demanded legislative fastening.

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A source: Batalova Marjana Rashitovna. the INTERNATIONAL PRIVATE LAW of TURKISH REPUBLIC (CODIFICATION EXPERIENCE). The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014. 2014

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More on topic §3. The Liability law:

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  11. CHAPTER 2. SEPARATE PRINCIPLES of the LIABILITY LAW
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  15. § 2. The Liability for nonperformance or inadequate execution of the contractual obligation of delivery for law-enforcement bodies
  16. 2.1. Concept of the contract on rendering of paid educational services and its place in liability law system
  17. § 2.2. The Criminal liability for the acts made in state of drunkenness, and for leaving of a place of road accident in the Continental law states
  18. Chapter 1. The Criminal liability for motor transportation crimes in the countries of a family of the General law
  19. Chapter 2. Concept and the legal nature of indemnity against liability under the contract. Otgranichenie from tort liability insurance