The results and the terms of the abandonment of merchant trading according to the law of bankruptcy art. 44

The notion of merchant, is defined at the Code of Turkish Commerce and it is introduced by making a dual division. The division that, `?Real person merchant and corporate person?? mostly comes into prominence as part of the notion of commerce abandonment, which finds an expression at article 44 of Code of Execution and Bankruptcy. Because, corporate person is incorporated to the division at Code of Turkish Commerce, despite; at article 44 of Code of Execution and Bankruptcy, it is not incorporated. Because, after being at instance of dissolution, corporate person loses its legal entity following consummation of dissolution procedure, by cancelling the trade registration. For this reason, article 44 of Code of Execution and Bankruptcy; that says the merchant who assigns commercial activity is been subjected to bankruptcy rules for one year as from the publicity; is nonenforceable for corporate person. So, it must be considered of the difference between real person merchant and corporate person while qualifying the execution area of CEB. Art. 44. The notion of commerce abandonment, is as well as closely relevant to the adjective `merchant? which is defined and sort coordinated at Code of Turkish Commerce, but it is not a sine qua non of adjective `merchant. To lose the adjective `merchant?, is only a result of commerce abandonment. The notion of commerce abandonment means, closing the concern, dissolution of concern, elimination of concern or sellout of concern. The obligations of the merchant who abandons commerce are arranged at article 44 of Code of Execution and Bankruptcy except of Code of Turkish Commerce. On that sense, article 44 of Code of Execution and Bankruptcy is a substantive law order. Because, the basic enforcement violation of this obligations is, going on being subject of bankruptcy law procedure as if he hasn?t lose the adjective `merchant?. Also, it is thinkable that this is a example to this scope; who doesn?t pay the publicity expenses is ranked as not to declare property.For the merchant who abandons commerce activities and respond the obliges, the basic result is, to be subject of bankruptcy procedure for one year. For one year as from the publicity of trade register, the merchant goes on being the subject of bankruptcy procedure. This situation is a exceptional state, that a person can be able to be the subject of bankruptcy procedure although he doesn?t have adjectivity of merchant. One of the other result is that, the commodity of the merchant who abandoned commerce activity is forbidden to dispose. At the bimonthly forbid period time, it is forbidden to the merchant to recirculate the estate which is garnishable to the strangers. But, there is a exception if the stranger is bona fide. However, low maker resolved that some certain people can?t be bona fide. And also even though the code hasn?t mention, some people who is known that can?t be gracious (as like commercial agent), can?t assert a claim as he is bona fide. The enforcement of not responding to the obligations which are defined at this article (CEB Art.44) is determined by CEB Art. 337. At CEB Art. 337, it is determined as for at least three months, one year tops to the prison sentence. Thereby, in regard to Turkish Criminal Code, the prison sentence can be reprieved or commuted to other alternative penal sanctions. The offence that is defined at the article is a free motion offence. So that, it?s enough to do one of the malpractice that the law maker defined. But it?s hard to say the same thing for penalisation. Because, to impose a penalty, it?s stipulated to the legal complete of the creditors. So it?s not enough to impose a penalty with only the motion of the offence. Also it takes the attention; it is stipulated that, creditor must be got harmed because of the abandon, to be able to say that it constituted a crime. Thus, it?s impossible to punish the old merchant as long as the merchant who abandoned commercial activity doesn?t give any harm to the creditors. Keywords: Merchant, commerce abandonment, declaration of abandonment, declaration property, the offence of commerce abandonment.