57 Union of Turkish Bar Associations Review 2022 Bahar TOPSAKAL receivable, and then he pays a less amount than the amount he charges the credit card and collects (i.e. the loan amount subject to the agreement) in cash to the card holder. The lending of money is based on the pretended sales agreement that is present in appearance. The collusion here is a relative collusion. Pursuant to Article 19 of the TCO, in cases of relative collusion, the transaction in appearance shall be invalid because it does not reflect the real will of the parties, and the hidden transaction that reflects the real will of the parties shall have legal consequences. In POS usury, the sale transaction in appearance that does not reflect the real will (Intention) of the parties shall be invalid, but the hidden transaction (loan contract) that reflects their real purpose shall still exist. When the act is evaluated in the light of these explanations, in POS usury, the intent of the perpetrator is to gain benefit by usury, and the intended crime is usury. The perpetrator makes more than one move acts when committing this crime. Although the perpetrator also commits the crime defined in Article 36 of the Law No. 5464 with some of these acts aiming to secure his receivables, more than one acts in question constitutes a "single act" in the legal sense. As emphasized in the decision of the assembly of criminal chambers of the Court of Cassation dated 07/06/2010 and numbered 2010/8-51 E., 2010/162 K., “With Article 44 of the TCC, the legislator has adopted the 'melting system'. Accordingly, in POS usury, the crime of violating Article 36 of the Law No. 5464, which the perpetrator commits with some acts while committing the crime, melts into this act, since the act of usury, which is the main purpose of his intent, is the only act. For this reason, the article defining the crime of usury, which the the real intend of the accused, in other words, to which the accused’s intention is directed, should be applied. Moreover, considering the provisions of the TCO, it is a result of the legal logic that the criminal law, which pursues the material truth, should take the hidden transaction (loan contract) into account that the parties ultimately want to achieve (Intention), not the transaction in appearance in the evaluation of the act. VII - CONCLUSION Considering that the legal value protected by Article 241 of the TCC, which is applicable to the POS usury acts, and the legal value protected by Article 36 of the Law No. 5464 are different, and the victims of both crimes are different, it is not possible for the dispute to be resolved in the light of the principle of “the special norm precedes”, which is one of the principles of aggregation in appearance, as requested by the Supreme Court Chief Public Prosecutor's Office, in other words, Article 36 of the Law No. 5464 cannot be applied. In POS usury, the intent of the perpetrator is to gain benefit by usury, and the intended crime is usury. Although the perpetrator makes more than one acts when committing this crime and he also commits the crime defined in Article 36 of the Law No. 5464 with some of these acts that he performs to guarantee his receivables, since the above mentioned multiple acts constitute a "single act" in the legal sense, the acts violating Article 36 of the Law No. 5464 melt in usury act which is the intention of the perpetrator. It was understood from the content of the file and the reasoning in the decision of our chamber that the provision of the article defining the crime of usury, which the perpetrator intended to commit, should be applied to the perpetrator; for this reason, the objection of the Office of the Chief Public Prosecutor of the Court of Cassation was not deemed appropriate. Thus, although the types and terms of punishments for the crimes are the same, it has been stated that the legal identification should be made correctly in terms of issues such as amnesty, complaint, right to participate, and determination of the competent chamber of appeal. The aforementioned decision states that in cases where more than one crime are committed with a single act of the perpetrator and
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