Sayi126

Düzenleyici İşlemin Konusunun Gayrımeşru Olması

168

Anahtar Kelimeler

: Normlar Hiyerarşisi, Yokluk, Kanuna Aykırı

Yönetmelik, İdari İşlemin Konusu.

Abstract:

With a new enactment published in the Official Ga-

zette dated 19 November 2015, the Regulation on Foundation Hig-

her Education Institutions has been changed, and after stating that

foundation universities may not transfer any funds under the title

of “Non-Profit Making and Transfer of Funds”; actions which will

be considered as fund transfer have been listed in the related ar-

ticle. The first paragraph of Article 28 of the Regulation rules that,

“Loans provided by the board of trustees or by members, or by any

other third-party real or legal persons and the interest charged upon

which is inexplicably higher than the weighted average interest ra-

tes that the Central Bank applies to loans issued by banks,” will be

considered as fund transfer.

According to legislative provisions that are currently in force in

the Republic of Turkey, however, it is legally impossible for foundati-

on universities to

accept interest-bearing loans from board of truste-

es, or any of its members, or any other third-party real persons

. This

is because, according to Turkish Criminal Law, regardless of their re-

lationship to the foundation university,

“accepting interest-bearing

loans from real persons”

is a

“Usury Crime”

. Hence, this provision

of the Regulation, issued by the YÖK Presidency, attempts to legi-

timise an act which is legally impossible, forbidden by law and even

considered as a crime by the provisions of Turkish Criminal Law; and,

providing that the interest rate they are going to pay may not be hig-

her than market conditions, the foundation universities are allowed

to take loans at interest from the board of trustees, or from any of

its members, or from any other third-party real persons.

In this article, in relation to the above mentioned article of the

Regulation on Foundation Higher Education Institutions, which has

been published and entered into force on 19 November 2015, the

provision of this Regulation that allows foundation universities to

“take interest-bearing loans from real persons” will be compared

with the “Usury Crime” which is defined and forbidden by Article

241 of Turkish Criminal Law; and the legal consequence of a legislati-

ve act, the subject-matter of which is illegal, will be examined within

the scope of hierarchy of norms and theory of non-existence in ad-

ministrative law.

Keywords:

Hierarchy of Norms, Non-Existence, Illegal Regula-

tion, Subject-matter of an Administrative Act.

I- Vakıf

Üniversitelerinin

Finansman İhtiyaçları ve Kredi

Kullanımı

Vakıf üniversiteleri, Anayasanın amir hükmü gereği kamu tüzel

kişiliğini haiz, özel kanunla kurulan hukuki varlıklardır. Bu üniversi-

teler; kâr amacı gütmeyen, kamu yararına hizmet eden kuruluşlarıdır.