Akademik Veri Yönetim Sistemi
JOURNAL OF PENAL LAW AND CRIMINOLOGY-CEZA HUKUKU VE KRIMINOLOJI DERGISI, sa.2, ss.133-154, 2024 (ESCI)
Fault is a common element necessary for both crime and tort. However, the meaning of this common concept may differ in terms of crime within the framework of classical doctrine and tort. As a matter of fact, according to Art. 74/1 of the Turkish Code of Obligations, a civil judge is independent of the principles of criminal law in terms of determining fault in terms of acts that may constitute both crime and tort. The subject of this study is a comparison of the meanings of the concept of fault in terms of tort and crime, according to classical crime doctrine. In this study, the differences and similarities between the approaches of criminal and civil law to this concept are revealed. Defining a person guilty is a more severe judgment than defining a person as debtor. On the other hand, depriving a person of his/her liberty is a more severe sanction than making him/her pay compensation. For these reasons, the conditions for a person being condemned for an unlawful act are more severe in criminal law than in civil law. Although the rule states that acts committed with fault at the level of intent give rise to criminal liability and that negligence is exceptional, even slight negligence is sufficient for tort liability to arise. It is easier to accept the existence of fault in the field of tort, where the objectified understanding of fault is dominant and the individual excuses of the tortfeasor are not considered in determining fault, compared to criminal law, where the subjective understanding of fault is dominant and the individual abilities and characteristics of the perpetrator are considered in determining fault.