Yargısal İçtihatlar Işığında Alacağın Tahsili Amacıyla İşlenen Yağma Suçu

Abstract

The actions of the creditors that involve force and/or threat against the debtor in order to collect their receivables based on legal relations are considered as a crime, and it is proposed that the perpetrator who does not collect his receivables by resorting to legal means will be punished. While it is regulated as a crime of spontaneous right (vigilantism) in the TPC numbered 765, the crime of taking rights spontaneously was not included in the TPC numbered 5237; however, in terms of crimes against assets, in case the perpetrator commits theft or fraud in order to collect a legally protected receivable, the penalty to be given for these crimes is reduced by determining the lower and upper limits. However, if the perpetrator uses force or threat to collect his receivables, a different regulation is introduced and it is stated that the perpetrator will be punished not for plunder, but for intentional injury or threat. The fact that the debt relationship between the perpetrator and the victim is on a legitimate basis is the basic condition for the perpetrator to benefit from the provisions of theft (art. 144), fraud (art. 159) and plunder (art. 150/1) committed for the purpose of collecting the receivables regulated in the TPC. For this reason, the legally protected claim must be a legally valid one, and the perpetrator and the victim must be parties to this debt relationship. For those who are not a party to the legal relationship, the provisions regarding theft (art. 141-142), fraud (art. 157-158) and plunder (art. 148-149) are in question. In terms of theft and fraud, which are crimes against property, if these crimes are committed for the purpose of collecting receivables, the nature of the crimes does not change, and it constitutes a situation that requires less punishment. However, the situation is different in TPC art.150/1 regulation. Although it is expressed in doctrine and judicial decisions that the crime committed for the purpose of collecting the receivable regulated in Article 150/1 of the TPC is the special case of plunder, it is unclear what crime the perpetrator committed in this case. In Article 150/1 of the TPC, it is regulated that if the crime of plunder is committed for the purpose of collecting a receivable based on a legal relationship, the provisions regarding the crimes of willful injury or threat to the perpetrator will be applied. Although the title of TPC art.150/1 is a situation requiring less punishment, the relevant article does not propose a reduction in the penalty to be given for plunder. In our study, it is aimed to contribute to the practice by revealing the legal nature of the provision by giving place to different opinions within the framework of doctrine and judicial decisions, by evaluating controversial opinions.