EDİMİN İFASINA FESAT KARIŞTIRMA SUÇU VE UYGULAMADA ÖNE ÇIKAN SORUNLAR
Abstract
Kamu kurum veya kuruluşları, kamu kurumu niteliğindeki meslek kuruluşları, bunların iştirakiyle kurulmuş şirketler, bunların bünyesinde faaliyet icra eden vakıflar, kamu yararına çalışan dernekler ya da kooperatifler ihtiyaç duydukları herhangi bir mal, hizmet veya yapım gibi ihtiyaçlarını karşılamak üzere, ihaleye çıktıklarında, yapılan ihale sonunda ihaleyi kazanan taraf ile kamu kurum veya kuruluşu arasında sözleşme imzalanmakta ve ardından edimin ifası süreci başlamaktadır. TCK md. 236ıda sözleşme ile taahhüt altına girilen edimin ifasına fesat karıştırma eylemleri suç olarak düzenlenmiştir
Keywords
EDİMİN İFASINA FESAT KARIŞTIRMA SUÇU VE UYGULAMADA ÖNE ÇIKAN SORUNLAR
Abstract
When public institutions or organizations, professional organisations having the characteristics of public institutions, companies established through their participation, foundations functioning within their body, associations or cooperatives working for public benefit go out to tender in order to meet their needs such as any goods, service sor construction, as a result of the tender made, a contract is signed between the party winning the tender and public institution or organisation and the process of fulfillment of execution begins. Acts of using fraud or trickery in the fulfillment of execution undertaken through a contract are provided as offence in Article 236 of Turkish Penal Code. The basic form and penal sanctioning of the offence are determined in the 1st paragraph of the article. Fraudulent acts on the purpose of using fraud or trickery in the fulfillment of execution are provided and material elements of the offence are indicated in the second paragraph of the article. The commitment of the offence of using fraud or trickery in the fulfillment of execution is impossible through an act except for the acts provided in this paragraph. In the third paragraph, it is noted that the derivation of benefit by public officers and other persons has no effect upon legal elements of the offence, so that the offence of using fraud or trickery in the fulfillment of execution is constituted and in case the public officer commits this offence by deriving benefit, it is provided that criminal liability under the related provision of offence shall also be in question and the rule of concurrent sentence shall be applied. As provided in Article 1 concerning the scope, Public Procurement Contracts Law is restricted to contracts signed during the tender process carried out under Public Tender Act numbered 4737. Therefore, since Public Tender Act is a Law applicable to tenders for the procurement of goods and services and construction, Public Procurement Contracts Law is a law applicable only to contracts to be signed as a result of tenders for the procurement of goods and services and construction. However, Article 236 of Turkish Penal Code numbered 5237 includes tenders for the procurement and sale of goods and services and leasing. Thus, tenders for the sale of goods and services and leasing tenders cannot be evaluated within the scope of Public Procurement Contracts Law. In practice, as many mistakes are made in the identification of fraudulent acts on the purpose of using fraud or trickery in the fulfillment of execution and legal elements of the offence, it is necessary that these acts shall be properly examined and the way the material elements of the offence occur shall be well-defined
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