Yeni Türk Ticaret Kanunu'nda Haksız Rekabet Suçları

While the former Turkish Commercial Code defined unfair competition expressly in Article 56 — "unfair competition is every abuse of economic competition by deceptive conduct or by other means contrary to the rules of good faith" — the new Commercial Code contents itself, instead of a definition, with emphasising the aims and principles of the prevention of unfair competition.

The offence of unfair competition was chosen as the subject of the paper because this institution — of the greatest importance for its economic as well as its legal consequences — was restructured in the new Code without being defined, leaving the constitution of the offence potentially uncertain. The offence is regulated in Article 62 of the Commercial Code.

Under Article 54, the purpose of the provisions on unfair competition is to secure fair and undistorted competition in the interest of all participants — in other words, to prevent the abuse of the right of economic competition. For the right to compete, like every right, stands under the control of the rule of good faith flowing from Article 2 of the Civil Code; the statutory scheme thus underlines that the right, where abused, will not be protected by the legal order.

In examining the offence, the study follows the system generally adopted in Turkish criminal-law doctrine: first the legal interest protected is explained; then, after examination of the material and mental elements, the special forms of appearance of the offence, its sanction and the investigation procedure are assessed. Throughout, the views of the doctrine and the relevant judicial decisions are discussed.

The assessment concludes that the conduct prohibited by Article 62 is not competing but the abuse of competition, and that the acts there regulated may be directed not only at a rival firm but also at the consumer.

Reading Articles 55 and 62 together shows that, in regulating the criminal consequences of unfair competition, the Code accepts that acts of unfair competition enumerated merely by way of example for private-law purposes may ground criminal liability. The paper states that the enumeration of merely exemplary acts is not legally sound in view of the principle of legality of offences and penalties: what criminal law requires is a definition of the offence, bringing within its scope every act capable of falling under it. The reasoning of Article 62 states expressly that no penalty will be imposed in other cases which, though not enumerated, constitute wrongful acts — with the result that many acts capable of causing very serious harm to persons or institutions may remain unsanctioned. In the author's view (just as the instruments usable in intentional killing and other offences are not enumerated one by one), Article 62 should have been drafted without reference to Article 55, defining the act of unfair competition completely, with all its elements, for the purposes of criminal law, fixing its penalty, and leaving the solution of concrete cases to the judge.

The study closes by stating that the author does not support the efforts to abolish imprisonment for the offences in the Commercial Code: the provisions on unfair competition in particular can produce extremely serious and irreparable economic consequences for companies, for consumers and for the economic order of society.