Cheque Law numbered 5941 was published in the Official Gazette dated December 20, 2009, numbered 27438 ("2009 Cheque Law"). The clauses regarding amendments in the Cheque Law numbered 6273 ("New Law") were accepted on 31.01.2012 and act to amend Cheque Law number 5941. The New Law was published in the Official Gazette dated February 03, 2012, numbered 28193 and entered into force on that date.
With this amendment, a highly significant element impacting business life, "consequences of the usage of cheques", has been rearranged and important developments which will affect many economic activities were brought in with this New Law.
The Turkish Grand National Assembly Justice Commission explained the grounds for the amendment of the Cheque Law numbered 5941 as follows:
"It is required to comply with the principle of proportionality by the restriction of the fundamental rights and freedoms; this principle is regulated in the 13th Article of Constitution. The principles of the criminal law that the sanctions stated in the Turkish Penal Code numbered 5237 shall be proportionate and shall be the ultimate remedy as per the principles arising from the Article 13 of the Constitution. The criminal law shall be enforced, when it is inevitable in terms of the procurement of the social peace. Penalizing economic crimes are against the principles stated above, besides it causes damages to people's business lives and it makes it nearly impossible for the people to pay their debts.
Besides these, another important issue is that conflicts arising from the valuation of a 'bad cheque' crime constitute a huge proportion of the heavy work load of the judiciary. Therefore, the application of an administrative sanction in the form of a prohibition of issuing a cheque and opening a cheque account seemed like a more favourable solution.
With these planned amendments, it is aimed to stop the existing discommodities due to the application of a legal sanction to the life act, to activate the justice, to make it work quickly and efficiently."
The amendments brought by the New Law are as follows:
1. With Article 1; the expression "judicial records" found in Article 2 sub-clause 2 of the 2009 Cheque Law is amended to "Central Bank of Turkish Republic" and the expression "date of issuance for the cheque" is added into sub-clause 7 of the same article.
With the amendments:
- Because the penal sanction previously applied to the person responsible for issuing the cheque is now converted to an administrative sanction, the records of disqualification conditions which were held under the judicial records system shall now be filed at the Central Bank.
- It is regulated that the date of issuance of cheques shall be written on every sheet of the cheque book.
2. With Article 2; the expression "six hundred" referred to in the Article 3 sub-clause 3 of the 2009 Cheque Law is amended to "one thousand" and the expression "in case of complaint" in sub-clause 6 is amended to "in case of claim". The following sub-clause "In case the cheque is not submitted in five years following the date of issuance written on the cheque, the liability of the drawee bank regarding the amount which will be paid according to sub-clause three, shall end." is also added.
With the amendment;
- The liability of banks in honouring bad cheques has increased. Accordingly, the bank will pay to the cheque holder:
- Either one thousand Turkish Liras (the maximum liability of the bank) or the full amount of the cheque debt not covered by funds on account, whichever is the smaller amount.
- If the amount of cheque debt not covered by funds on account is greater than one thousand Turkish Liras, then the amount remaining (after the funds available in the issuer's account and the bank's liability payment have been paid) becomes a debt and can be pursued through the usual channels.
- Where the cheque is not submitted within five years of the date of issuance as written on the cheque, the liability of the drawee bank to honour payment will end.
3. With Article 3;
- The title of Article 5 of the 2009 Cheque Law is amended to "Prohibition of issuing a cheque and opening a cheque account". The expression "legal and penal liability" in sub-clause 3 is amended to "legal liability and administrative sanction liability" and the legal sanction (usually the prison sentence) that would have applied to the cheque drawer within the legal period of representation is converted into an administrative sanction.
- Sub-clauses 1 and 10 of Article 5 of the 2009 Cheque Law are also amended as follows:
a) In case of issuing a bad cheque, it is stated that the holder can apply with a request (within 6 months) that a prohibition is placed on the issuer against them issuing further cheques or opening another cheque account. This prohibition can be applied for by either legal entities or real persons via:
- The place where the cheque was submitted to the bank,
- The bank branch handling the cheque account, i.e. where the account was opened by the issuer,
- The court with jurisdiction over the area of residence of the cheque account holder or the claimant,
- The Public Prosecutor.
Prior to the amendment a judicial punishment of up to 1500 days of detention can be given to the drawer of a bad cheque. Following the amendment however, the prohibition against issuing cheques or opening any cheque account will be handed down by the prosecutor instead.
b) The prohibition of issuing cheques and opening cheque accounts will also be applied in cases of fraud, forgery of documents or other crimes using is suing of bad cheques as a means. In these cases the offender is penalized according to the provisions of Turkish Penal Code, and additionally the prohibition of cheque issuing and opening of cheque accounts is put in place.
c) It is resolved that the Misdemeanour Law shall be applied to govern the application and objection system regarding prohibition of issuing cheques and opening cheque accounts. In a case where an objection application is successful against the prohibition, the Central Bank shall be informed with the relevant information through the Ministry of Justice National Judiciary Informatics System (UYAP) electronically.
4. With the Article 4; Article 6 of the 2009 Cheque Law is amended;
- If the bad cheque amount is paid in full together with the interest applicable according to Law number 3095, it is implied that the prohibition against issuing cheques and opening cheque accounts shall be removed by the Public Prosecutor and shall be announced by the Central Bank of the Republic of Turkey. The applicable interest is calculated using the default interest rate for commercial affairs from the legal submission date taken from the written date of issuance of the cheque.
- The prohibition of issuing cheques and opening cheque accounts can be lifted by applying to the prosecution office, which will decide the outcome of the application. As part of this administrative process applied to the person responsible for causing the cheque to bounce, the sanction will encourage payment of the cheque debt at the same time.
- It is stated that the record of the prohibition against issuing cheques and opening cheque accounts will be removed by the Central Bank ex officio after 10 years have passed since the record entry, and it is asserted with this regulation that cheques cannot be issued by those prohibited people during this 10 years period, unless the prohibition is officially lifted.
5. With the Article 5; the expression "prison sentence for a year" in Article 7 sub-clause 9 of the 2009 Cheque Law is amended to "Administrative fine by the Public Prosecutor from three hundred Turkish Liras up to three thousand Turkish Liras". With this amendment;
- For bearer cheques, it is necessary to use the type of cheque book specific to bearer cheques. For each cheque in question, a prison sentence of one year can currently be applied to the person who issues bearer cheques without using the correct cheque book type; this penalty is converted to an administrative fine between three hundred and three thousand Turkish Liras.
6. With the Article 6; a stated provisional clause is added to the 2009 Cheque Law.
With the provisional clause;
- Banks shall produce new cheque books pursuant to the principles of the notification to be published by the Central Bank of the Republic of Turkey, within a month following the effective date of issue of this Article, being 03.02.2012.
- Banks shall give their clients these new cheque books by 31.12.2012; clients who will in turn destroy the old cheque books in their possession.
- The old cheques, regulated in accordance with the abolished Law numbered 3167, which was in force up to the publication of this New Law, remain valid.
- The liabilities of the banks regarding old cheque books which the bank's customers have in their possession will end on 30.06.2018.
- Cheques submitted to the drawee bank for payment before the written date of issuance are invalid.
- The records regarding prohibitions against issuing cheques and opening cheque accounts given before the date of issue of this Article will continue to be kept at the Central Bank of the Republic of Turkey, until the conditions regarding the removal of the prohibition are met.
- Due to the provisions of the New Law, the sanctions applied to crime are converted to administrative sanctions, and those administrative sanction resolutions will be given:
a) For files at the investigation stage with the Public Prosecutor,
b) For the files at the prosecution phase with the courts.
The files shall be remanded to the court of first instance by either the Public Prosecution Office of the Supreme Court or the relevant chamber of the Supreme Court for the execution of the transactions contemplated under this New Law and such court of first instance shall be entitled to render judgment without holding hearings with respect to such files.
7. With the Articles 7 and 8; the limitation period is reconstituted in the Turkish Commercial Code dated 29.06.1956 and numbered 6762 and the Turkish Commercial Code dated 13.01.2011 and numbered 6102.
- The 6 months limitation period specified in Article 726 of the 1956 Turkish Commercial Code titled "Period of Limitation" and in Article 814 of the 2011 Turkish Commercial Code titled "Statute of Limitations" is amended to "3 years". According to this, the right of petition of the holder against the endorsers, the drawers and other cheque debtors will be lapsed 3 years following the submission period. The right of petition of the cheque debtors against each other will be lapsed 3 years following the payment of the cheque by the cheque debtor or following the submission of the cheque in litigation.
8. According to Article 9, the Law entered into force on the date of its publication; it was published in the official gazette on 03.02.2012, numbered 28193.