Author
AKMAN, Ahmet
Publication Place
Hits University -
Hits University
Subject
Islamic law, Mediation
Type
Book
Language
ara,eng,tur
Digital
Yes
Manuscript
No
Library
Leitir Library
Library Asset ID
ISSN: 2757-6949, EISSN: 2757-6949, DOI: 10.14395/hid.953936
Record ID
cdi_doaj_primary_oai_doaj_org_article_701cf9a69c8641c68737c8a527ce5f8b
Library Location
DOAJ Directory of Open Access Journals
Notes
Settlement agreement represents a different approach to resolving disputes between individuals compared to litigation. Achieving a settlement during the litigation process is a matter of trial law. It is possible for the parties to make a settlement agreement outside of the trial, and in this case it constitutes a substantive law issue. It is possible to see the traces of peace in Islamic law in the texts. It is understood from the verse that peace is better that peace is prioritized as a method of resolving disputes. Hz. Ömer said, “Guide the parties to peace, because deciding cases by court decision creates hostility between them.” He pointed out the importance of peace by saying. A settlement agreement is a waiver by the parties of their rights and lawsuits in exchange for a fee in order to resolve a legal dispute. It is regulated in Mecelle as a contract formed by the will of the parties. The existence of judiciary and courts is a fundamental issue in a law-abiding state. However, judicial processes sometimes cause the parties to experience a tiring process. For this reason, throughout the historical process, the judge, the notables of the region and the person's relatives have invited the parties to peace. The prevalence of peace is understood from the records in the kadi registers. Especially in shopping, commercial and family law disputes, and in criminal and tort cases concerning personal law, settlement agreements are frequently used. Settlement agreements can be confused with some similar legal transactions. However, they have different features in many respects. In this context, release, waiver and arbitration may be mentioned. The settlement agreement is subject to the contract provisions that are most similar to it in terms of subject and price. These are depending on the situation; sales, rent, consumption, loan and grant. The subject of the settlement agreement may be goods, interests or rights. In addition to being specific and the property of the person making the peace, they must also be related to an issue that concerns the rights of the people. Depending on the subject and price of the settlement, it may be in cash or deferred, in accordance with the conditions that require no interest. It is possible that the property subject to settlement may be movable or immovable or a receivable in embezzlement. Mostly, disputes in the fields of the law of obligations, real rights, family and inheritance arise as a matter of settlement. It is possible for the judge to guide the parties to peace during the trial. There are many disputes that have been resolved through people called muslihun, who guide the parties to peace other than the judge. A judge's decision is not necessarily necessary for these to be binding. Muslihun actually acts as an intermediary and makes a significant contribution to the negotiations and formation of the will of the parties. In this form, it is very close to the voluntary mediation institution in today's positive law. If the judge sees a situation suitable for an amicable solution or believes that the case will increase the hostility between the parties, he directs the case to peace. An out-of-court settlement agreement produces its results in terms of substantive law. It is possible to prove any disputes that may arise afterwards with witnesses. There are three basic types of peace in terms of their nature. The first is the settlement agreement made with the acceptance of the debt. This is called settlement upon admission. In the other case, there is denial by the defendant. This is called a settlement agreement based on denial. The last one is the settlement agreement made upon the silence of the debtor. The existing legal relationship changes its nature with the settlement agreement. General reasons for applying for settlement include problems in applying to court and transportation, as well as local consensus interventions. Also worth mentioning are the fact that settlement is less costly and flexible. A valid in-court settlement agreement now has the enforcement ability of a court order. If it is not realized by the will of the parties, it is implemented through the enforcement authorities of the state. The defendant is responsible for any loss or defect on the settlement fee. Settlement agreements that contain options become possible to terminate when the party that has this option exercises this right. The settlement made in this way is actually a non-binding contract. If the subject of the settlement and the price are real estate, the right of pre-emption arises with the settlement agreement within the framework of the newly established legal situation. The settlement agreement made on the property also binds the heirs. This feature is not available in rental agreements. In Turkish law, in addition to peace, mediation and conciliation have been accepted as alternative solutions and have taken their place in the legal order. Mediation is a way of resolving disputes that mostly concern private law. Settlement (compromise) agreement expresses a different approach compared to litigation in the resolution of disputes between individuals. The realization of settlement during the litigation process is a matter of procedural law. The parties can make a settlement agreement outside the trial, and in this case, it constitutes a matter of substantive law. It is possible to see the traces of settlement in Islamic law in the texts. From the verse that peace is better, we understand that settlement is prioritized as a solution method for conflicts. Hz. Omar also emphasized the importance of settlement. A settlement agreement is the parties giving up the right and the lawsuit in exchange for a price in order to settle the dispute. It is regulated in Majalla as a contract formed by the will of the parties. The existence of a judiciary and courts in a law-abiding state is a fundamental issue. However, judicial processes sometimes cause a tiring process for the parties. For this reason, throughout the historical process, the judges, the notables of the region, and the relatives of the person invited the parties to the settlement agreement. The prevalence of settlement is understood from the records of the peace in the qadi registers. The prevalence of settlement is understood from the kādī records. Especially in the sales contract, trade, family law disputes, and in criminal cases concerning personal rights, many settlements have been applied. A settlement agreement can be confused with some legal proceedings similar to it. However, they differ from them in many respects. In this context, release agreement, waiver and arbitration can be mentioned. The settlement agreement is subject to the agreement most similar to itself in terms of subject and cost. These are according to the situation; sales, rent, exchange, loan for use, and gift. The price in the sales agreement and the ones that are permissible in the lease agreement can be the settlement price. It can be cash or deferred by the conditions that make it necessary not to fall into interest. The subject matter of settlement may be movable and immovable or a debt. Mostly, disputes in the field of obligations law, real rights, family, and inheritance emerge as matters of settlement. During the trial, it is possible for the judge to refer to the settlement. Many disputes have been resolved through people called muslihūn, who direct the parties to a settlement settlement other than the judge. The decision of the judge is not necessarily required for their binding. Muslihūn actually acts as an intermediary and makes an important contribution to the negotiations and formation of the consent of the parties. As such, they stand very close to the voluntary mediation system in today's positive law. If the judge sees a situation that is suitable for an amicable settlement or if he thinks that the case will increase the enmity between the parties, directs. Out-of-court settlement agreements have their results in terms of substantive law. It is possible to prove the disputes that may arise later with witnesses. There are three basic types of peace in terms of their nature. The first is the settlement agreement made with the acceptance of the debt. This is called a settlement upon admission. On the other, the defendant's denial is in question. This settlement is called the settlement on denial. The last one is the settlement agreement concluded on the silence of the debtor. With the settlement agreement, the existing legal relationship changes its nature. Problems in applying to the court and transportation, as well as local reconciliation interventions can be counted among the general reasons for applying to settlement. It should also be added that a settlement agreement is less costly and flexible. An in-court settlement agreement now has the ability to enforce a court decision. If it is not with the consent of the parties, it is realized by the executive authorities of the state. The defendant has responsibility for the compensation and the defect on the settlement subject. The existence of the option right (al-khiyar) makes it possible to terminate the settlement agreement. The settlement made in this way is actually a non-binding contract. In case the subject of the settlement and the price is real estate, preemption right occurs within the framework of the newly established legal situation together with the settlement agreement. The settlement agreement on the property also binds the heirs. Rental contracts do not have this feature. In Turkish law, besides settlement agreement, mediation and conciliation accepted as alternative dispute resolution and took their place in the legal order. Mediation is a resolution method for disputes concerning private law.
Detaylı Başlık
İslâm-Osmanlı ve Modern Türk Hukuku'nda Sulh Sözleşmesi ve Alternatif Uyuşmazlık Çözüm Yollarına Mukayeseli Bir Bakış
