402 / 522
1
Court of Cassation 23
rd
Civil Chamber, Date 31.05.2012, No E. 2012/1431, K. 2012/3846
(www.kazanci.com).
2
Sümer Altay
, Türk İflas Hukuku, Book I, Ocak 2004, p. 468.
3
Baki Kuru/Ramazan Arslan/ Ejder Yılmaz
, İcra ve İflas Hukuku Ders Kitabı, Ankara 2012,
2
nd
Edition, p. 493.
4
Altay, p. 469.
5
Hakan Pekcanıtez/ Oğuz Atalay/Meral Sungurtekin Özkan/Muhammet Özekes
, İcra ve
İflas Hukuku, Ankara 2013, 11
th
Edition, p. 649.
Another ground is established when the creditor may file a direct
bankruptcy case if the debtor has fled for purposes of avoiding
creditors
1
. This means the debtor has left his/her residence in order to
avoid his/her due or undue obligations, thereby damaging his/her
creditors. In some cases, the new address of the debtor may be known,
but it may be inconvenient for the debtor to initiate an enforcement
proceeding. In such cases, certain scholars state that presumptive
evidences would be sufficient to prove the intention of the creditor.
However, some others defend that the burden of proof is on the debtor;
thus, the creditor shall prove the change of residence of the debtor, and
the debtor shall prove that the purpose of this change was not to avoid
his/her debts, and not to damage his/her creditors
2
.
Another ground for a direct bankruptcy case is the occurrence or
attempt by the debtor of fraudulent transactions which threaten the
rights of the creditors. This act does not have to qualify as a crime in
terms of criminal law, nor does the debtor have to be subject to any
criminal investigation. Occurrence or attempting to conduct fraudulent
transactions that have a direct or indirect negative effects on the assets
of the debtor is deemed to be sufficient. The creditor may initiate a
direct bankruptcy in the presence of the cases set forth under Articles
278-280 of the EBL regarding the initiation of a lawsuit on the annul-
ment of a disposal transaction
3
. Similarly, the grounds of fraudulent
bankruptcy set forth under Article 311 of the EBL may also be evalu-
ated as grounds for a direct bankruptcy case
4
.
The last of the ground provided by Article 177/1 of the EBL is hid-
ing the assets by the debtor during an attachment proceeding. This
ground is only applicable once the obligation to declare its assets aris-
es for the debtor
5
. After the enforcement proceeding for purposes of
386
NEWSLETTER 2015