İzinsiz Bankacılık Faaliyetlerinde Bulunma Suçu

Abstract

This article addresses the unauthorized banking crime prescribed under the Art.150 entitled “Operating without related authorization” of the Banking Law (BL) numbered 5411. Although it has long been a known offense in Turkish law, to the best of our knowledge, there are a few judgment delivered by the Turkish Court of Cassation. Likewise, the issue has captured only a little attention of the legal academia although it has been on the code for a long time. With in the Art.150 of Banking Law, the legislature not only the operating without authorization (Art.150/I BL) but as well as to use or express the term of “bank” or similar expressions without authorization (Art.150/I BL) under penalty posed. The following article sets out the criteria for criminal liability of the particular offence in regard to objective and subjective elements of the crime. In this context, fist the historical development, the punitive reason and thus the protected legal good has been discussed. Assuming that the proper conduct of the banking system and operability of the banking market is protected as a legal good, the necessary conditions for criminal liability will be examined accordingly. In the end, this paper concludes that the particular crime is an abstract danger and a simple activity offense. At the same time, that is a permanent offense. Since the phrase of “without authorization” has been stated in the legal definition of the crime, it had been also argued how to interpret this element, especially whether in terms of legality or justification. This paper argues that to obtain the required authorization already affects directly the legality not the lawfulness and the required authorization has the eliminating effect on the typicality element of the offence.