Hayatın olağan akışında bir şahsın, aynı zarar verici olaydan farklı sebeplerle sorumlu tutulabilmesi mümkündür. Sorumluluk sebeplerinin birden fazla olması diğer bir ifadeyle sebeplerin yarışması meselesi doktrinde eskiden beri tartışılan ve kararlarla geliştirilen bir müessesedir. 01.07.2012 tarihinde yürürlüğe giren 6098 sayılı Türk Borçlar Kanunu’nun 60’ıncı maddesinde açıkça düzenlenen yarışma meselesi, Türk hukukunun bir parçası hâline gelmiştir. TBK m. 60 uyarınca bir davada birden fazla sorumluluk sebebi aynı anda uygulanabiliyorsa hâkim, zarar gören aksini açıkça talep etmiş olmadıkça, en iyi giderim imkânını sağlayan sebebe göre karar verir. Görüldüğü üzere TBK m. 60 hükmü ile zarar görenin birden fazla sorumluluk sebebine dayanabileceği durumlarda uygulanacak olan prensipler düzenlenmiştir. Bununla birlikte maddenin lafzı, yarışma sorununa bir çözüm getirmediği gibi daha fazla sorunun ortaya çıkmasına sebep olmaktadır. Bu kapsamda, özellikle, mehaz İsviçre Borçlar Kanunu Ön Tasarısı’nın 53’üncü maddesinde yer almamakla birlikte TBK m. 60 hükmüne eklenen “zarar gören aksini istemiş olmadıkça” ifadesi doktrinde ileri sürülen eleştirilerin odak noktasını teşkil etmektedir. Çalışmamızda medenî usûl hukuku açısından sorumluluk sebeplerinin yarışmasını düzenleyen TBK m. 60 hükmünü değerlendirmeyi amaçlamaktayız.

Waiver of a lawsuit means the plaintiff to partially or completely withdraw from the claim stated in the petition. According to the regulations in the code, waiver can be given at any stage of the proceeding, until finalization of the form of verdict. While waiver is possible while the proceeding at the court of first instance is ongoing, it is also possible after the verdict is given, yet before applying to legal remedies or during when the lawsuit file is examined for remedies. If the lawsuit is waived while the proceeding at the court of first instance is ongoing, it should be terminated by a procedural decision of the court of first instance stating that the lawsuit was terminated due to waiver. However, there is no provision in our legislation about which decision will be passed, by which authority and in which manner if the withdrawal from the lawsuit is given within the legal time frame to apply to legal remedies after the verdict is given by the court of first instance or after the verdict is appealed through legal remedies. Therefore, there is an established practice of the Court of Cassation on the authority to be applied to and the verdict to be given by this authority if the lawsuit is waived by the plaintiff within the legal time frame for applying to legal remedies after the verdict or while the legal remedies are being examined. Article 57 of the Regulation on Code of Civil Procedure issued after the Code of Civil Procedures No. 6100 came into force on 01.10.2011, introduced for the first time a provision that the lawsuit can be waived after verdict is given by the court of first instance. After the repeal of the Regulation on Code of Civil Procedure, another regulation was introduced with the Regulation on the Regional Courts of Justice and Court of Original Jurisdiction and Chief Public Prosecutor's Office Administrative and Editorial Services (Art. 215). With the provisions of the regulation, a different and new regulation from the practice of the Court of Cassation was adopted by assuming that the court will examine the notice of waiver before applying for legal remedies and will give an "additional verdict" in this respect. After the CCO amendment that entered into force on 28.07.2020, provision regarding the case and the decision to be made were clearly introduced in the Law. Thus, the current situation in practice has been regulated in the CCP and brought into law. In our study will try to discuss which authority is to give the verdict that the lawsuit is terminated upon waiver of the lawsuit after verdict is given by the court of first instance but before applying to legal remedies, or while the lawsuit file is being examined according to the legal remedies in terms of the decisions of the Court of Cassation, opinions put forward in the doctrine and the provisions of the Regulations (former HMK Article 57; Regulations Art. 215) and within the framework of the CCP amendment that entered into force on 28.07.2020.

Concordat is the legal opportunity that enables the debtors, whose financial situation have deteriorated and are unable to pay all their due debts, to pay their debts under the conditions provided to them in the temporal section stipulated as a result of the acceptance of the proposal by the creditor with a qualified majority as determined in the law and approval of the said proposal by the competent authorities. With the entry into force of the Law No. 7101 on the Enforcement and Bankruptcy Law and Amending Some Laws, significant changes have occurred in Turkish Law in terms of the procedure, function and process of concordat. The provision of the law, in which the consequences of the temporary respite for the creditors are expressed in the concordat, has been revised and rearranged. In the 6th paragraph of Article 294 of the Enforcement and Bankruptcy Law, which was revised by Law No. 7101, the legislator foresees that the agreements regarding the transfer of the future receivables, which were concluded before the concordat respite, shall be null and void in the event that the receivables arise after the respite decision. This rule, which will protect the debtor from the unpredictable consequences of the receivable transfers made before the concordat respite is offered, will also serve for the financial recovery of the debtor. The provision of the law regarding the effect of respite on the transfer of future receivables, which allows the recovery of the deteriorated financial situation of the debtor under more favorable conditions, is important due to being recovery friendly. In our study, after explaining the results of the concordat procedure and the temporary respite for the creditors, which are generally shaped by the Law No. 7101, the effect of the temporary respite on the transfer of future receivables will be tried to be revealed. Thus, by explaining the purpose, conditions and results of the provision of law envisaged in art. 294/ para. 6 of EBL, the new regulation regarding the transfer of future receivables introduced by Law No. 7101 will be evaluated.