Adî Konkordato Çerçevesinde "Kayyım"

Pursuant to Enforcement and Bankruptcy Code art. 306/2, in the attestation decision, a trustee may be appointed to take the necessary oversight, management and liquidation measures to ensure the fulfillment of the approved concordat. In terms of a successful concordat implementation, the trustee has great importance in order to achieve the individual-public interests by securing the benefits of the creditors and the public during the implementation of the project. Despite this importance, there are differences in doctrine and practice on issues such as the appointment of the trustee, trustee's legal nature, duties, rights, powers, obligations, responsibilities and remedies against his actions, due to the limited provisions of the legislation regarding the trustee. The trustee is appointed in order to protect the interests of the creditors, and thus to secure the execution of the project, since no assurance is foreseen for the creditors in principle. In this respect, the appointment of a trustee is a precautionary decision. Considering the legal nature of concordat regarding public order and legal nature of trustee's missions in the implementation period of concordat, the trustee is a public official specific to the law of improvement-restructing. Even though it is not specifically regulated, the trustee should be an expert who has the necessary qualifications. Furthermore, also the professional management-audit firms should be able to be appointed as trustee. Although there is no clarity in the Code, it is possible to complain to the commercial court against the actions of the trustee. Duties, rights and powers of the trustee, should be determined in each concrete case by the court in a limited way according to the need within the scope of the project and should be clearly stated in the approval decision. Because in the implementation process of the concordat, the debtor's power of disposition is essential and the debtor should be able to manage the actions freely. Unless the duties of the trustee are clearly specified in the attestation decision, pursuant to the Code, it should be assumed that the trustee is only assigned to audit and authorized only to report the condition of the business and whether its solvency is maintained. The trustee has civil and criminal responsibility due to unlawful acts related to duties.