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Commercial Enterprise - Trader, Tradesman and Commercial Litigation - Affair

Enterprise

Ticari işletme, tacir, ticari dava - iş, esnaf

Enterprise can be defined as the independent bringing together of labor and capital by an entrepreneur for the purpose of obtaining economic benefit. Basically, when we say enterprise, we talk about an organization. Organization is an indispensable, invisible condition of an enterprise. This general concept of enterprise, which is examined in terms of economics, is a concept that includes commercial business and artisan business in a broad sense.


Commercial enterprise and its elements


In the preparation of the Turkish Commercial Code No. 6102, the basis of "commercial enterprise" has been acted on and the important institutions of the commercial law have been defined by establishing a connection with the concept of commercial enterprise. This subject was also mentioned in the justification of Article 11 of the Turkish Commercial Code, and it was stated that "...commercial enterprise is the basis of the law; in other words, it is the concept of the center; with this nature it is decisive, even descriptive...". Commercial enterprise is defined in article 11/1 of the Turkish Commercial Code No. 6102. According to this article, "Commercial enterprise is the enterprise in which the activities are carried out continuously and independently, aiming to generate income exceeding the limit stipulated for the artisan enterprise." The elements of the commercial enterprise are continuity, economic activity (targeting to provide income), independence and exceeding the boundaries of artisan activity. (Karaman Coşgun, Özlem; The Concept of Enterprise in the Turkish Commercial Code No. 6102 and the Consequences of Being a Trader/Merchant, MÜHF - HAD, C.21, P.1, p.115 and others).


Trader/Merchant


"Trader/Merchant", which is the main subject of commercial life, is also defined in the context of the concept of enterprise, and it is stated in Article 12/1 of the Turkish Commercial Code that the person who operates a commercial enterprise, albeit partially, on her/his own behalf shall be called a trader. In the following paragraphs of the article it is stipulated that a person who has declared that s/he has established and opened a commercial enterprise to the public through circulars, newspapers, radio, television and other advertising means or has announced the situation by registering her/his business with the trade registry shall be considered a trader even if s/he has not actually started the business, and anyone who acts as a partner as if s/he has opened a commercial enterprise on behalf of herself/himself or an ordinary company or on behalf of another company that is not legally recognized by any means, shall be liable to bona fide third parties like a trader.


Artisan Business


According to Article 15/1 of the Turkish Commercial Code, a person who is engaged in art or trade, whether on a mobile phone, in a shop or in certain parts of a street, whose economic activity is based on more physical work than her/his capital, and whose income does not exceed the limit indicated in the decree to be issued in accordance with the second paragraph of Article 11 is a tradesman.


In Article 11/2 of the Turkish Commercial Code, it is stated that the limit between the commercial enterprise and the artisan enterprise will be determined by the President's decision.


Commercial litigation (Absolute commercial litigation, relative commercial litigation) and Commercial Affair


Article 4 of the Turkish Commercial Code No. 6102 determines which affairs shall be considered as commercial lawsuits, and in Article 5 of the aforementioned law, it is stated that the relationship between the commercial court of first instance and the court of first instance and other civil courts is a competency relationship. It is possible to collect commercial lawsuits in three groups as absolute commercial cases, relative commercial cases and cases that are considered commercial although they are only related to a commercial enterprise. Absolute commercial cases are cases that are considered commercial regardless of whether the parties are traders and whether the affair concerns a commercial enterprise. Absolute commercial cases are listed in paragraphs in article 4/1 of the TCC numbered 6102. In addition to these, there are also commercial cases determined in some special laws such as the Cooperatives Law (art. 99), Enforcement and Bankruptcy Law (art. 154), Financial Leasing Law (art. 31), Commercial Enterprise Pledge Law (art. 22). In order for the lawsuits in this group to be considered commercial, conditions such as the parties being traders or related to their commercial enterprises are not required, it is sufficient to be included among the limited cases in the 4/1 clause of the TCC or to be qualified as a commercial lawsuit in special laws. These cases are considered as commercial lawsuits by law. Relative commercial cases are cases that are considered commercial in nature if they are related to the commercial enterprise of both parties. According to article 4/1 of TCC numbered 6102, civil lawsuits arising from matters related to the commercial enterprise of both parties and which both parties are traders are considered commercial lawsuits. According to this provision, in order for a lawsuit to be considered a commercial lawsuit, it must both concern the commercial enterprise of both parties and both parties must be traders. Unless these conditions are found together, the fact that the subject of the dispute is a commercial affair or that the affair for the other party is considered a commercial affair due to the presumption of commercial affair does not make the lawsuit commercial. In other words, in accordance with Article 19/2 of the Turkish Commercial Code No. 6102 an affair that is considered a commercial affair for one of the parties is considered a commercial affair for the other party, shall not commercialize the nature of the case. Because the Turkish Commercial Code has determined the commercial case on the basis of commercial enterprise, not on the basis of commercial affair, except for cases considered commercial by law. As such, the commercial nature of the affair does not make the case a commercial one. The third group of commercial lawsuits are the cases related to remittance, trust and intellectual property rights that only concern the commercial enterprise of one party.


As explained above, for a case to be considered a commercial lawsuit, as a rule, it must either be among the absolute commercial lawsuits or be related to the commercial enterprise of both parties. In order for the cases related to remittance, trust and intellectual property to be considered as commercial, only the fact that it is related to one of the commercial enterprises is deemed sufficient in the TCC.


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