Türk iş Hukukunda İkale (Bozma) Sözleşmeleri

Abstract

The principle of freedom of contract is widely accepted about contracts made by private persons within the scope of Contracts Law. This principle is regulated in article 48 in Constitution of Republic of Turkey. As per that article, "Everyone has the freedom to work and conclude contracts in the field of his/her choice". More in particular in the field of Labour Law, "mutual rescission contracts" come into view as a consequence of the principle. Mutual rescission contracts are defined as "a termination an existing employment contract concurringly within the scope of freedom of contract by an employee and employer". Even if drawing up a mutual rescission contracts, which has not been regulated in our legislation yet, is subject to general provisions of Turkish Code of Obligations, it has also special importance by virtue of being a field regarding of Labour Law. Because Labour Law is a field taken shape within the framework of the principle of preservation of employee. Taking into consideration that nonequivalent employment relation between employee and employer, it is quite apparent that mutual rescission contracts have a potential may cause aftermath against employee. In an attempt to prevent to cause these undesired results, certain criterions are specified by doctrine and Supreme Court of Turkish Republic and it is aimed to prohibit these unwanted results. Fundamentally, our study aspires to evaluate contract and labour contract in general within the context of our judicial system and consider mutual rescission contracts in the light of doctrine and legal precedents of Supreme Court. Keywords: Mutual rescission contract, rescission, labour contract, employment agreement, freedom of contract, the cancellation of a contract by mutual agreement of the parties, termination, labor-job protection, reasonable benefit.