EHK has introduced various provisions in the field of electronic communication in order to protect consumer rights and interests. These provisions are sector specific and mandatory. These provisions also have the ability to be applied directly.

EHK has brought a number of obligations to the Information Technologies and Communication Authority (BTK), as well as bringing various obligations to operators in order to protect consumers.

e.g

– operators are obliged to provide “equal service” to all consumers (art. 47);
– It was emphasized that consumers should be informed about everything they would need to make decisions (art. 49 / III);
– an obligation to sign a subscription agreement with consumers (art. 50 / I);
– The elements that should be included in the content of the contract are specified in detail (art. 50 / I);
– BTK has been given the right to intervene directly in subscription agreements (article 50 / II);
– a sanction for invalidity is envisaged in terms of the provisions against the consumer included in the subscription agreements (art. 50 / III);
– consumers are given the authority to terminate the contract unilaterally (art. 50 / IV);
– operators are obliged to provide a certain quality of service (art. 52).

The principles and rules set for the protection of consumers in the EHK are general, abstract and non-detailed rules due to the nature of the work. However, the electronic communication area is a rapidly developing and dynamic area. It cannot be expected that the law will keep up with this development and include regulations to answer any emerging need. For this reason, the legislator has given the BTK the authority and responsibility to make secondary arrangements in order to provide suitable solutions to these new problems.

e.g
– EHK m. After it was stated in 47 that all consumers have the right to receive equal service, it was stated that the principles regarding this provision will be determined by BTK;
– m. After adopting the principle of protecting the consumer and end user in 48, it was clearly emphasized that the principles and procedures regarding protection will be determined by BTK.

Likewise EHK m. In the provision of 49, ICTA has been given the authority to make arrangements to determine the procedures and principles regarding transparency.

Again EHK m. Although subscription contracts were arranged in detail in 50, with this provision, the BTK was also obliged to make arrangements in order to determine the application of the substance. Similarly, EHK m. The principle of protecting personal data with the provision of 51 has been adopted; however, it has authorized the ICTA to issue regulations to determine how this protection will be provided. The service to be provided is of a certain quality m. It was stipulated in 52 and BTK was given the authority to make regulations regarding the measurement and inspection of quality.

There is no hesitation when all these secondary regulations envisaged by EHK are intended to protect the consumer in one way or another. However, unlike other areas where consumer protection is concerned, a separate INDEPENDENT ADMINISTRATIVE AUTHORITY was established here and this authority was delegated to DIRECT RESPONSE. In fact, this independent administrative authority is not only authorized to interfere with the relations between operators and consumers, but also with the authority to solve problems that may be against the consumer; it is also equipped with the authority to apply sanctions directly to operators.

The Information Technologies and Communications Authority has been given the opportunity to use these powers given to it by making arrangements when necessary, by carrying out an audit activity and applying sanctions when necessary. It is clearly stated that one of the main objectives of these powers granted to BTK is consumer protection.

II. Consumer Rights Regulation (EHSTHY) in the Electronic Communication Sector

A). Generally

BTK has issued the Consumer Rights Regulation in the Electronic Communication Sector, which was published in the Official Gazette dated 28.07.2010 and numbered 27655 by using the authority given to it by EHK. With this regulation, consumer rights have been brought into a more detailed regulation within the context of the basic principles set by EHK.

This regulation is not the first industry-specific regulation. The Consumer Rights Regulation (EHSTHY) in Telecommunication Sector, previously published in the Official Gazette dated 22.12.2004 and numbered 25678, was in force. EHSTHY contains significant differences and innovations compared to the old regulation as will be explained in detail below.

EHK consumer rights

– transparency and information,
– subscription contracts and
– arranged in the context of unfair terms.

These principles were developed with the Regulation; At the same time, the scope and content of consumer rights have been determined and some obligations have been included for operators operating in the sector in order to protect these rights effectively.

It should be stated that not only the principles introduced by the EHK were prepared in the preparation of this regulation; it was also the relevant post on the issue issued by the EU Commission.

By bringing together the competition, supply and demand, which form the lifeblood of the free market economy, without any intervention in market conditions, it ensures that the scarce resources of the society are distributed in the most effective way and are used in the most efficient way, and the goods and services are offered to consumers at the lowest price and in high quality. Therefore, the efficient functioning of the market economy system and realizing the benefits expected from it can only be possible if a competitive environment is created in the markets. (one)

Competition laws, on the other hand, are the state’s intervention tool for the economy in order to ensure and protect free competition. Competition laws prohibit undertakings from restricting competition in a particular market of goods or services, through agreements, concentrations, or abuse of market power. Thus, while the activities that might harm the competition order of the undertakings are taken under control and ineffective, equality of opportunity and enterprise freedom are ensured for the undertakings, while economic efficiency and social welfare and consequently consumer welfare are increased. However, it should not be forgotten that the companies that are the first and direct influences of the competition protective objectives and measures of competition law are the market actors. For this reason, laws refer to businesses rather than consumers. On the other hand, the largest segment of the competition is the consumers who benefit from the laws. Because the most important result of the competition is the decrease in prices, product variety, increase in quality and after-sales services are always in the benefit of consumers. Even if the consumer is not explicitly mentioned, one of the hidden objectives of the competition laws and perhaps the most important is the protection of the consumer. (2-3) Therefore, although the competition laws do not primarily pursue the consumer benefit, in other words, they provide the benefit of the consumer as a result of the improvements they bring to economic life.

II- Consumer Protection and Competition Relations in the Constitution

According to Article 167 of the Constitution, “The state takes measures to ensure and develop healthy and orderly functioning of the money, capital, goods and services markets; It prevents monopolization and cartelization that will arise as a result of actual or agreement in the markets. … ”According to Article 172,“ The state takes protective and enlightening measures for consumers and encourages consumers to protect themselves. ” In fact, it can be said that the said provisions are compatible with each other. As a matter of fact, in the reason of article 172, the idea of ​​consumer protection lies behind the competition law. In the justification in question, “… protection of consumers is a social problem, and the measures to be introduced in this regard should protect consumers on the one hand, but at the same time, refer the producers and sellers to competition among them. Consumer protection is a free market economy measure. This basis should not be ignored in the measure of consumer protective rules. … It can be secured by protecting the consumer in terms of price and quality, providing free competition conditions, and preventing monopoly and cartels. ” As can be seen, our Constitution also predicted that consumer protection can only be possible with the existence of a free market economy.

As a matter of fact, in a decision taken by the Constitutional Court, (4) regarding the evaluation of the articles in question, it was stressed that the duty of the State to prevent the monopolization and cartelization was mainly for the purpose of protecting the consumer and emphasizing that Article 172 of the Constitution had a very close relationship with Article 167. It has been stated that the duty of protecting the consumers given to the State with the article can only be secured by providing free competition conditions by preventing monopolization and cartelization, and the effectiveness of the market economy depends on the existence of perfect competition conditions and the market economy will lose its effectiveness in environments that allow monopolization or cartelization.

III- Laws No. 4054 on Consumer Benefits Regulations

In accordance with the article 167 above, both the constitutional and European Union relations and economic obligations (5) have been determined in the Law No. 4054 on the Protection of Competition, which is illegal and prohibited, and in some articles directly or indirectly. consumer benefit has been observed.

According to Article 4 of the Law in question, inter-enterprise agreements, compatible actions and undertakings of associations that have the purpose of preventing, distorting or restricting competition directly or indirectly in a particular goods or services market, such actions and undertakings of enterprise associations and their actions are illegal and prohibited. (6) It is possible to divide the competition-limiting transactions under this article into two categories, horizontal and vertical limitations. (7) It is generally accepted that the negative effects on competition are higher than vertical restrictive agreements, but

In our study regarding the criminal liability of the chairman and members of the board of directors of joint stock and limited companies, the principle of the personality of the penalties in article 20 of the New Turkish Penal Code, which entered into force on 1 June 2005, will be taken into consideration. The provisions regarding the principle of the personality of the penalties regulated in both Article 38 of our Constitution and Article 20 of the TCK numbered 5237 are as follows:

In the 38th article of our Constitution, the phrase “Criminal responsibility is personal” has been clearly stated and in the 20th article of TCK numbered 5237, which entered into force on 1 June 2005, the principle of “Personality of Punishments” is “Criminal responsibility is personal. Nobody can be held responsible for someone else’s act ”.

The principle of personality of criminal responsibility means that the criminal officer is responsible for the punishment and that third parties other than the offender are not punished for the behavior described as crime [1].

It will be understood that the principle of personality of criminal responsibility is based on the responsibility of defects in criminal law, and that objective responsibility, that is, perfect responsibility, has been abandoned. As a matter of fact, in the article 23 of the TCK numbered 5237, there is a provision regarding the fact that a person cannot be punished more than his fault. This provision is as follows: “If a verb is heavier than it is meant or causes another result to occur, one must act at least negatively in order to be held responsible for it”. According to this provision, a punishment that is heavier than the person’s fault cannot be ruled out [2].

After these explanations, it is necessary to evaluate the criminal responsibilities of the joint stock company and the limited company board members in terms of Tax Procedure Law No. 213.

In the first paragraph of Article 10 of the Tax Procedure Law No. 213, if the legal persons are taxpayers and tax officers, the duties written in the 359th article of this law are processed in the last paragraph of the 333th article of the same law. The penalties stipulated in Articles. and 360 are included in the “provision for those who commit these acts”.

In practice, if a Tax Crime Report related to a joint stock company is issued and sent to the relevant Chief Public Prosecutor’s Office, statements of the head of the joint stock company and all members of the board are taken. In addition, if the joint stock company consists of family members, it is observed that lawsuits have been filed against all family members. However, considering the legal regulations, some communiqués and the decisions of our Supreme Court on this matter, it will be understood that no lawsuits should be filed against the chairman of the board of directors and all members of the board of directors.
According to the 317th article of the Turkish Commercial Code, joint stock companies are determined in the 319th article of the same law with the provision “It is managed and represented by the Board of Directors”, and if it is to be done, how to do this is determined. At least one member of the Board of Directors is authorized to represent the company ”. First of all, it is necessary to determine which members of the company are authorized to represent and bind the company.

Nuri Ok and Ahmet Gündel include the following phrases about criminal liability in joint stock and limited companies on the 46th page of their tax evasion crimes. “As stated in the general explanations in the section titled Responsibility in legal persons, the measure under the responsibility of the legal representatives is that they are considered as criminal interlocutors who know the details of the act and have a role in its formation according to the nature of the event. Otherwise, it is not all of the legal representatives shown in laws or contracts [3]. ”

In the Communiqué No. 143 of the Tax Procedure Law, published in the 17402 issue of the Official Gazette dated 14.07.1981; “In accordance with the 10th article of the Tax Procedure Law, it has been stated that all members of the board of directors should not be held responsible in criminal cases, the members of the board of directors are responsible, who know the details of the crime and have a role in their formation [4].”

In the General Communiqué of the Tax Procedure Law No. 306, published on 18.06.2002 and number 24789 of the Official Gazette, the Ministry of Finance stated that the principle of the principle of the punishment was based on, and that a criminal complaint should not be filed in case of using a false or misleading document. has been [5].

When we look at the decisions of our Supreme Court, it is seen that these statements have stabilized. In the decision of the Criminal General Assembly of the Supreme Court of Stability dated 17.12.1990 and numbered 1990 / 9-312 E., 1990/349, it was stated that “the legal representative responsible for the form should not be punished, and those who know the details of the crime should be punished”.

The 11th Criminal Chamber of the Supreme Court of Appeals, in its decision dated 9.5.2002 and numbered 2002/1198 E., 2001/3995, “In the event that it is understood that the crime was not committed in action and consensus, criminal responsibility depends on the principle of punishment.

The purpose of the proxy contract is business, but its subject is human labor or activities. A non-action (avoidance) act or material acts of unfair action will prevent the creation of a proxy contract. Our Code of Obligations 386-398. among the articles regulate ordinary attorney. In the following articles, reputation letter, reputation order and brokerage (brokering), which are other types of power of attorney, are discussed.

For the proxy contract to be valid, it is necessary to comply with the law and morality as well as its subject is possible. The attorney agreement is formed by the acceptance of the request by the other party. However, article 387 states the following; “In the event that the attorney has a formal title or is engaged in the profession or procures his services publicly, the attorney is deemed to be accepted if there is no immediate rejection.” In accordance with this provision, if professional groups such as lawyers, notaries and doctors do not immediately refuse the request directed to them, a proxy contract will be established. Upon the occurrence of the contract, the attorney is under the obligation to see the works or services given to him in accordance with the contract (art.386 / 1).

The scope of the proxy is primarily understood from the contract and the client’s instructions. If the power of attorney cannot be distinguished in this way, it is determined by the nature of the job it is related to. In this case, the attorney will be able to take into account the subject of the work, the nature of the work, the purpose to be achieved by the work, the characteristics of the event and the practices in this regard. The client has the opportunity to expand and narrow the power of attorney, the scope of which is determined by the instructions he will give later. The proxy contract also includes the mandate to perform mandatory legal proceedings for the performance of the committed work. However, for some important transactions, the proxy is required to have special authority.

Transactions requiring special authority are listed in the law. It is necessary to assign a special authority to the lawsuit for filing lawsuits, peace, arbitration, commitment of foreign exchange, forgiveness, real estate assignment, and right to real estate. Seeking special authority in special arrangements does not only serve the purpose of protecting the client but also affects third parties who are in legal relationship with the proxy. This counting process, which imposes a legal limitation on the scope of the proxy, should be considered as limited counting (limitation) and not as an example.

Deputy’s Debts and Responsibility

As stated in the Supreme Court decision (E: 2004/14912 K: 2005/715), the proxy contract is largely based on the mutual trust of the parties. Most of the deputy’s debts arise from this trust factor and require acting in accordance with the will and benefit of the deputy. Loyalty and care debt was accepted as the first debt of the attorney and it was included in the second paragraph of Article 390. Based on this, the proxy will be held responsible in accordance with paragraph 1 of article 390 for transactions incompatible with the benefit of the client, as well as the obligation to avoid behaviors at the expense of the client. In addition, the responsibility of the client due to negligence and carelessness will come to the agenda during the work and management. The attorney will be responsible for not achieving the result that he is aiming for while doing business, but not for the activities he / she does to reach the result.

The attorney’s obligation to take care of the job disappears with the performance of the work. However, the loyalty obligation and the secret-keeping debt arising from this loyalty obligation continues after the end of the proxy. There is no provision in the Law of Obligations regarding the attorney’s confidentiality debt. However, as a result of the mutual trust relationship, the attorney is obliged to keep the secrets of the learned client due to the execution of the attorney. In the event that the attorney harms his client with his contradictory behavior, his responsibility will arise as per m.398. The representative is also deemed to have undertaken the debt of informing, which is the requirement of the loyalty debt, and the debt to make recommendations regarding the performance of the business.

As a rule, the attorney has to do the work he / she has undertaken and cannot see this work to anyone else. This situation stems from the importance of the factor of trust in the proxy. However, if the client allows the work to be done to someone else, or if it is obligatory according to the situation, or if customary and customary, the proxy can put the work on him by putting someone else in his place. The attorney may leave the performance of some jobs to the assistants. Responsibility for the actions of these assistants BK. It is subject to M. 100. The other way of substituting another person for the proxy is substitution proxy. In the substitute attorney, the attorney leaves the fulfillment of the debts arising from the proxy through a contract made on behalf of the client. Pursuant to paragraph 1 of Article 391, he / she is responsible for the acts of any person substituted outside of his / her authority, as if they were their own actions. Paragraph 2 of the same article states that the deputy will be held responsible for not paying the necessary care and attention to the person who chose and instruct him.

The concept of “defective goods”, which we can often encounter in daily life, is subject to legal terms and results? Usually 6098 p. On the sales contract. The concept of “shame” encountered in legal relations, where the provisions of the Turkish Code of Obligations finds application, results in the buyer having certain optional rights. The buyer has certain rights against the seller using one of the optional rights we will review in this article. The seller must fulfill the selective right of the buyer as required.

Responsibility arising from the defect usually finds application in sales contracts. However, there are liberty liability provisions in work contracts, proxy contracts and other contracts outside the sales contract. For this reason, first of all, the provisions against monopoly arising from the sales contract must be examined.

What is the Sales Agreement?

Before examining the defective provisions of the sales contract, 6098 p. It will be useful to examine the provisions of the Turkish Code of Obligations regarding the nature of the sales contract. Namely;

Article 207: “The sales contract is the contract where the seller transfers the possession and ownership of the seller to the buyer and the buyer undertakes a payment debt in return.

Unless otherwise agreed by contract or otherwise, they are obliged to fulfill their debts at the same time.

The price that can be determined according to the situation and conditions is in the form of an agreed price. ”

As it is seen, the sales contract is the contract where the seller assumes the obligation to transfer the sold to the buyer for a “money”. Parties are required to act in accordance with their obligations arising from this contract.

What is “Shame”?

The shame is described in the doctrine in two different titles. Accordingly, it is a shame definition that “a good is far from providing the average benefit expected from it, it does not have the objective and reasonable features sought, it is defective or inefficient”, as well as “the lack of qualifications that the seller claims to have”. Both states indicate the presence of the shame.

In other words, the responsibility of the seller arising from the qualifications he declared against the buyer and the qualities that eliminate or significantly reduce the value or the expected benefits of the seller in terms of the intended use is called defective responsibility.

The Court in Charge Which Court?

It should be noted that if the buyer has the title of “CONSUMER”, the provisions of the Law No. 6502 on the Protection of the Consumer are applied, not the provisions of the Turkish Code of Obligations No. 6098. Therefore, the court in charge becomes the Consumer Courts, not the Civil Courts of First Instance. Whose is the “consumer”, 6502 p. It is defined in the 3rd article of the Law and is taken into consideration. According to this,

“ARTICLE 3.-

Consumer: Real or legal person acting for commercial or non-professional purposes,

Consumer transaction: Establishment, transportation, brokerage, insurance, power of attorney, banking, and so on, established between real or legal persons acting for commercial or professional purposes or acting on behalf or for his account, including public legal entities, in the goods or services markets. all kinds of contracts and legal transactions, including contracts,

Seller: The real or legal person, including public legal persons, who offers goods to the consumer for commercial or professional purposes or acts on behalf or account of the goods provider… ”.

What Are the Rights of Buyers Arising from Shame?

The rights of those who are in the capacity of “buyer” and those who are in the character of “consumer” differ from each other. So let’s examine it separately.

6098 p. The provision of the Turkish Code of Obligations, which explains the optional rights related to the item, is as follows:

“one. Returning from the contract by declaring that it is ready to return the sold.

2. To retain the sold and ask for a discount in the price of the sale.

3. Requesting free repair of the sold at all costs, if the seller does not require excessive costs.

4. If possible, request that the sold be replaced with a defect-free counterpart.

The right of the buyer to claim compensation in accordance with the general provisions is reserved.

The seller can prevent the buyer from exercising his selective rights by immediately giving the buyer a defective copy of the same good and removing all the damage suffered.

If the buyer uses his right to return from the contract, if the situation does not justify this, the judge may decide to repair the seller or to reduce the sales price.

If the deficiency in the value of the sold is very close to the sales price, the buyer can only use one of the rights to return from the contract or to request the replacement of the sold with an indifferent counterpart. ”

What are the Rights of Consumers Arising from Defamation?

People with the title of consumer are subjected to higher protection than the usual buyers. Indeed, 6502 p. The provisions of the Law on Consumer Protection contain provisions on this subject as follows:

“A) Ready to return the sold

The concept of “defective goods”, which we can often encounter in daily life, is subject to legal terms and results? Usually 6098 p. On the sales contract. The concept of “shame” encountered in legal relations, where the provisions of the Turkish Code of Obligations finds application, results in the buyer having certain optional rights. The buyer has certain rights against the seller using one of the optional rights we will review in this article. The seller must fulfill the selective right of the buyer as required.

Responsibility arising from the defect usually finds application in sales contracts. However, there are liberty liability provisions in work contracts, proxy contracts and other contracts outside the sales contract. For this reason, first of all, the provisions against monopoly arising from the sales contract must be examined.

What is the Sales Agreement?

Before examining the defective provisions of the sales contract, 6098 p. It will be useful to examine the provisions of the Turkish Code of Obligations regarding the nature of the sales contract. Namely;

Article 207: “The sales contract is the contract where the seller transfers the possession and ownership of the seller to the buyer and the buyer undertakes a payment debt in return.

Unless otherwise agreed by contract or otherwise, they are obliged to fulfill their debts at the same time.

The price that can be determined according to the situation and conditions is in the form of an agreed price. ”

As it is seen, the sales contract is the contract where the seller assumes the obligation to transfer the sold to the buyer for a “money”. Parties are required to act in accordance with their obligations arising from this contract.

What is “Shame”?

The shame is described in the doctrine in two different titles. Accordingly, it is a shame definition that “a good is far from providing the average benefit expected from it, it does not have the objective and reasonable features sought, it is defective or inefficient”, as well as “the lack of qualifications that the seller claims to have”. Both states indicate the presence of the shame.

In other words, the responsibility of the seller arising from the qualifications he declared against the buyer and the qualities that eliminate or significantly reduce the value or the expected benefits of the seller in terms of the intended use is called defective responsibility.

The Court in Charge Which Court?

It should be noted that if the buyer has the title of “CONSUMER”, the provisions of the Law No. 6502 on the Protection of the Consumer are applied, not the provisions of the Turkish Code of Obligations No. 6098. Therefore, the court in charge becomes the Consumer Courts, not the Civil Courts of First Instance. Whose is the “consumer”, 6502 p. It is defined in the 3rd article of the Law and is taken into consideration. According to this,

“ARTICLE 3.-

Consumer: Real or legal person acting for commercial or non-professional purposes,

Consumer transaction: Establishment, transportation, brokerage, insurance, power of attorney, banking, and so on, established between real or legal persons acting for commercial or professional purposes or acting on behalf or for his account, including public legal entities, in the goods or services markets. all kinds of contracts and legal transactions, including contracts,

Seller: The real or legal person who offers goods to the consumer for commercial or professional purposes, including public legal persons, or acts on behalf or account of the goods provider… ”.

What Are the Rights of Buyers Arising from Shame?

The rights of those who are in the capacity of “buyer” and those who are in the character of “consumer” differ from each other. So let’s examine it separately.

6098 p. The provision of the Turkish Code of Obligations, which explains the optional rights related to the item, is as follows:

“one. Returning from the contract by declaring that it is ready to return the sold.

2. To retain the sold and ask for a discount in the price of the sale.

3. Requesting free repair of the sold at all costs, if the seller does not require excessive costs.

4. If possible, request that the sold be replaced with a defect-free counterpart.

The right of the buyer to claim compensation in accordance with the general provisions is reserved.

The seller can prevent the buyer from exercising his selective rights by immediately giving the buyer a defective copy of the same good and removing all the damage suffered.

If the buyer uses his right to return from the contract, if the situation does not justify this, the judge may decide to repair the seller or to reduce the sales price.

If the deficiency in the value of the sold is very close to the sales price, the buyer can only use one of the rights to return from the contract or to request the replacement of the sold with an indifferent counterpart.

What are the Rights of Consumers Arising from Defamation?

People with the title of consumer are subjected to higher protection than the usual buyers. Indeed, 6502 p. The provisions of the Law on Consumer Protection contain provisions on this subject as follows:

“A) Ready to return the sold