12. Civil Department
Part Number: 2019/7271
Decision Number: 2019/9780
“text of jurisprudence”
COURT OF LAW: Executive Law Court
Upon the request of the creditor, the file related to this work was sent to the apartment from the scene and the report organized by the Audit Judge for the case file was discussed and considered as necessary after hearing the report and reading and reviewing all the documents in the file within the period of the court decision written on the date and number above :
In the debtor’s application to the enforcement court, it was understood that the vehicle with the license plate 01 KB 476 belonging to the Municipality that was foreclosed on was allocated to the public by the decision of the city council, therefore it requested the removal of the foreclosure on the vehicle, the court decided to accept the case, and the creditor appealed the decision.
In Article 15/last of the Municipal Law No. 5393, the regulation “Taxes, paintings, fees collected by the municipality with the goods actually used in the public service of the municipality cannot be confiscated” is included. According to this article, in order for the municipality’s non-lienability complaint to be accepted, it is mandatory that the prisoners are actually used in public service.
Since the main thing according to the principles of the Enforcement and Bankruptcy Code and the follow-up law is to ensure that the creditor gets what he receives, as a rule, the seizure of all debtors ‘ property is possible. In order for a property not to be confiscated, it is mandatory to have legal regulation. Since the inviolability is an exceptional case, the regulations in this direction also need to be interpreted narrowly.
Accordingly, it is indisputable that for the non-lienability of a movable or immovable property belonging to the debtor municipality, this property should actually be used in public service. However, in order to accept that a good is actually used in public service, that good must be found suitable for the purpose of conducting public service.
In a concrete case, it is understood that the vehicle belonging to the debtor municipality that is the subject of the impropriety complaint is the mayor’s official vehicle. In the light of the principles described above, in order for the municipality to carry out public service, it should be emphasized whether the mayor’s official vehicle should be present and whether a vehicle allocated as an official vehicle should actually be used in public service.
4 Of the Vehicle Law No. 237. in the article, it is regulated who will be given an authority vehicle, and the mayor is not one of those who will be assigned an authority vehicle in accordance with the said law.
On the other hand, the use of the vehicle as an authority vehicle will not mean that it is actually used in public service, and the mayor’s authority vehicle does not need to be present for the public service to be carried out. Because the duties of municipalities are 14 of the Law No. 5393. it is explained in the article, and in order to fulfill these duties, it is not necessary to have a mayor’s office tool.
In that case, the court’s decision to accept the complaint with a written justification instead of a rejection is not successful.
CONCLUSION: The decision of the court with the acceptance of the appeals of the creditor and the reasons written above is 366 of the IC. and 428 of the HUMK. it was unanimously decided on 10/06/2019, with the possibility of correcting the decision within 10 days from the notification of the announcement, that the amount received in advance would be refunded upon request.