March 2008
AMENDMENTS IN THE CIVIL CODE, CODE OF CIVIL PROCEDURE AND THE CODE OF INTELLECTUAL AND ARTISTIC WORKS
I- Amendment in the Civil Code: Discharge of foundation administrators is getting more difficult
With the decision of the Constitutional Court published in the Official Gazette no. 26768 dated 26 January 2008, the second paragraph of the article 112 is amended.
The power to discharge the foundation administrators of the court used to be regulated as follows under the old version of the second paragraph of this article:
“The Court may, on the demand of the auditor, discharge the administrators by a hearing, on the grounds indicated in the by-laws, and may appoint new administrator if not otherwise provided in the statute of the foundation.”
In the case submitted with the claim that the expression “on the grounds indicated in the by-laws” is contrary to the Constitution, the Constitutional Court cancelled this expression as the right to establish foundations is a fundamental right and can be limited only by law.
II- Amendments in the CCP and CIAW: more detailed crime provisions
With the “Law on Reform in Some Acts for the Purpose of Harmonisation with Fundamental Criminal Codes” published in the Official Gazette no. 26781 on the 8th of February 2008, many laws are amended including the Code of Civil Procedure (CVP) and the Code of Intellectual and Artistic Works (CAIW).
1) Amendments in the CVP
A paragraph was added to the article 150 of the CVP providing that in case if acts which frustrate the order of the hearing constitute a crime, public prosecutor will be notified of the situation. Moreover, the crime provisions for refraining from witnessing, not coming to hearings and denying bond are abrogated. However, the crime provision on proceeding in bad faith is conserved.
2) Amendments in the CAIW
The crime provisions of the CAIW regarding violations of intellectual and artistic rights are amended by the Code no. 5728. Crime provisions on the violation of the rights of owners of works previously regulated under articles 71, 72, 73 and the provision of the article 80 on related rights are unified in a single article. With this regulation, work owners’ rights and related crime provisions are deemed to be of equal importance for the first time. With this regulation, the sentence of imprisonment of two years is diminished into one year with respect to pecuniary rights and into six month with respect to moral rights. With this regulation, unfortunately, the situation of law breakers is improved. Another bad new is that the judges are allowed by an amendment to rule on a small pecuniary sentence instead of imprisonment.
Moreover, crime provisions on two acts are abrogated. These are to publish a work for the first time without permission and to use a monetary right without title. In conclusion, CAIW whose structure is distorted by various amendments is likely to create new problems with this recent amendment.
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