For the credits of private individuals, according to the provisions of the Enforcement and Bankruptcy Law, the debtor’s assets can be confiscated. The aforementioned confiscation can also be applied to the assets held by third parties of the debtor that owes the debtor or has to make payments against other credits. Despite the practice which is based on the Enforcement and Bankruptcy Law, there is also a provision in the same Law that state proporties cannot be confiscated. In this respect, in the face of this general provision regarding all third parties who have to make payments to the debtor, an exception has been made in the same Law regarding the confiscation, in case the third party is the state due to the fact that the source of the payment is the state property. In practice, even if support payments are in question, notifications are made to the relevant public institutions and organizations that these payments should be made by the state as a third party to the enforcement offices instead of relevant debtor. Considering the two different provisions in the Law that differentiate the application of confiscation, the nature of the support payments as state property has been revealed in the study, taking into account the definition made in the legislation. Afterwards, it was analyzed that support payments cannot be confiscated, especially within the scope of the distinction between special provisions and general provisions with legal justifications. The provisions in the President’s decisions regarding the non-seizable of agricultural support payments are also presented as administrative decisions supporting this assessment.
Support Payment State Property Confiscation Public Resource Special Provision
The balance of interests between the creditor, the debtor and the third party in the seizure of the debtor’s goods and receivables from third parties is regulated in article 89 of the Enformcement and Bankruptcy Law (EBL). Pursuant to this article, in the confiscation process against the debtor, the debt of a third party to the debtor or any other claim of the debtor towards to the third party must bu paid to the enforcement office in proportion to the debt amount, not to the debtor. Since there is no additional annotation in this article, it can be claimed that the support payments within the scope of the seizure process in question should be paid to the enforcement office within this framework, since they can be considered as other rights. Because in practice, enforcement offices generally refer to article 89 and notify public institutions and organizations regarding the payment of support payments to the enforcement offices instead of the debtor within the scope of the seizure process.
Considering only article 89 of the EBL, there doesn’t appear to be anything problematic in these notifications made by the enforcement offices. However considering the definition of the concept of “state property” in the legislation, it can be seen that support payments are also included in this concept. As a matter of fact, according to article 2 of Law No. 1050, state property; it consists of all kinds of taxes, duties and charges imposed and collected by the state, cash belonging to the state, all kinds of stocks (bills of exchange), all kinds of movable goods, real properties, other assets and their income and sales prices. In accordance with this definition, which qualifies all public resources as state property, support payments are also state property. In this respect, it’s not possible to seize the support payments in accordance with the provision of article 82/1-1 of the EBL. As a matter of fact, there is a provision in the Presidential decisions, stating that since agricultural support payments are public resources, no seizure/enforcement, assignment or similar transactions will be made before they are transferred to the account of the beneficiary.
These determinations and evaluations; when it comes to support payments, it’s concluded that the article 82 of the EBL should be taken into consideration instead of the article 89 and therefore public institutions and organizations should make the support payments to the debtor without interruption instead of paying them to the relevant enforcement office.
Another controversial issue was identified during the review of the literature and judicial decisions regarding this fundamental debate issue discussed in the study. This is the issue of whether the debtor’s possible receivables from third parties can be requested to be seized in the seizure notices sent by the enforcement offices to third parties. From the literature review and the decision of the General Assembly of the Supreme Court of Appeals on the subject; it has been concluded that even if it is stated in the seizure notice sent to the third party that the possible receivables related to the follow-up debtor are also seized, the liability of the third party is, as a rule, limited to the existing receivables on the date when the seizure notice was notified. Considering the opinion in the literature that in order to talk about a possible receivable, a legal relationship must exist and the type and debtor of the receivable arising from this legal relationship must be certain, it has been evaluated that when such a specific receivable does not exist, a request for the seizure of a possible receivable in the future has no legal basis. As a matter of fact, the General Assembly of the Supreme Court of Appeals stated that if a lien notice is sent for the seizure of a possible receivable that is not based a legal relationship together with the receivables that have arisen, the third party has the right to cancel the part of the lien notice related to the receivable that will arise in the enforcement court through a complaint.
