Company law is a branch of normative law that includes rules of procedure and similar matters and related rules on establishment, capital structure, management and representation, partnership structure, formation and duties of organs, decision-making procedures, division, merger, change of type, termination and dissolution procedures of companies regulated in our Turkish Commercial Code, distribution of profit, auditing and collecting receivables of third parties from company partners.
The Turkish Commercial Code, Turkish Civil Code, Turkish Code of Obligations and other laws and regulations contain regulations on company law.
Legal services provided by our office to real persons subject to foreign real and legal persons with Turkish citizenship and to the legal entities centered in Turkey are as below;
Written and verbal consultancy in the process of company establishment, transfer, mergers, demergers, type changes,
Follow-up of the lawsuits regarding compensation, dividends and other receivables filed by the company partners against the company,
Written and verbal consultancy and follow-up of the lawsuits regarding the disputes arising between the company's board of directors, general assembly and supervisory board,
Written and verbal consultancy and follow-up of the lawsuits regarding withdrawal and exclusion from the company partnership,
Written and verbal consultancy and follow-up of the lawsuits regarding the dissolution process of the company,
follow-up of the lawsuits filed for the company's receivables and enforcement procedures,
Written and verbal consultancy and follow-up of lawsuits regarding disputes arising from unfair competition of company managers,
Written and verbal consultancy and follow-up services are provided regarding the Composition Agreements.
In the First Part of the Second Book of our Turkish Commercial Code No. 6102, general provisions regarding commercial companies are regulated under the title of "Commercial Companies", but the definition of the company is not made.
In the first paragraph of Article 124 of the TCC, the types of limited numbers commercial companies are stated as a repetition of Article 136 of the Turkish Commercial Code numbered 6272.
In accordance with the general distinction between non-corporate forms of companies and corporate forms of companies, it is stated in the second paragraph that collective and commandite companies are private companies; limited liability companies, joint stock companies and cooperative companies whose capitals are divided into shares are considered capital companies.In addition, the first paragraph of article 16 states that all commercial companies are merchants.
Cooperatives are also qualified as commercial companies in Article 124 of our Law No. 6102, and our Cooperatives Law No. 1163 is the basic law to be applied to cooperatives.
Turkish Commercial Code
ARTICLE 124- (1) Commercial companies; It consists of collective, limited liability, joint stock, commandite and cooperative companies.
(2) In this Code, the collective and the commandite company private company; A joint stock company, limited liability company, and a commandite partnership divided into shares, is considered a capital company.
When the ongoing articles of the relevant Law are examined as a whole, it is possible to define companies as private legal entities that have been established in accordance with the procedure stipulated by the law to for commercial activities, have a legal personality separate from their shareholders and have the capacity to act through their rights and their representatives and their distinctive features are regulated by law.
Article 126 of the TCC clearly states that the general provisions of the Turkish Civil Code regarding legal entities and in cases where there are no provisions in the TCC, the provisions of the Turkish Code of Obligations regarding the ordinary company will also be applied to the commercial companies. These provisions also will apply to commercial companies to the extent appropriate to the nature of the company type.
In corporate law, it is possible to separate commercial companies as private companies and capital companies.
The followings are regulated as common provisions in both types of companies;
The partners have a debt to invest capital in the company,
Each partner is responsible to the company due to the capital liability committed in the duly prepared and signed company agreement,
If money has been decided as capital, if there is no contrary provision in the articles of incorporation, an additional interest may be demanded in case of delay, provided that the right to compensation is not prejudiced,
The partner who brings her/his receivable from the third party as capital to the company is deemed not to have fulfilled her/his debt to invest until the collection of this receivable,
Provided that there is no provision contrary to the law and it is included in the articles of incorporation, the partners will be able to demand interest for the capital they put in the company and a fee for their services,
They will be able to perform merger, demerger or type changes by meeting conditions,(There is a special regulation regarding the transformation of the collective company into a commandite company and the transformation of the commandite company into a collective company)
It is regulated that companies can form a holding company.
CAPITAL COMMITMENTS IN COMMERCIAL COMPANIES:
Provided that it is decided in the article of the incorporation duly arranged in our commercial law and signed by the partners and there is no contrary provision in the law, each partner's money, receivables, negotiable documents, shares belonging to the capital company, intellectual property rights, movable property, all kinds of immovable property, right of movable and immovables, personal labor, commercial reputation, commercial enterprises, rightfully used electronic media, their domains, names and signs and other values, mining licenses and other rights with economic value, any value that can be transferred and evaluated in cash can be invest as capital.
However, according to Article 307/2 of the TCC, which regulates that the commanditer partner cannot put his personal labor and commercial reputation to the company as capital debt, Article 342/1 of the TCC regulating the commitment to invest in a joint stock company, and similarly to Article 581/1 of the TCC regulating the commitment to put capital in limited liability companies; assets, including intellectual property rights and virtual environments, that do not have rights, attachments and measures, can be utilized and transferred in cash, can be put as capital in kind.Exceptions are the provisions stating that the performance of service, personal labor, commercial reputation and undue receivables cannot be capital.
1-a Putting Capital in Kind to the Company:
It is possible for the shareholders of the company to bring an in-kind value or assets as capital in addition to cash as capital.In other words, the shareholders of the company can commit to the capital in cash and bring cash to the company, or they can commit capital in kind.Movable and immovable properties and values such as usage and usus fructus rights on them, intellectual property rights, mining licenses, commercial enterprises, rightfully used transferable electronic media, fields, names and signs are considered as capital in kind.(TCC article 127)It is not possible to bring personal labor and commercial reputation as capital in kind to joint stock and limited liability companies.In addition, personal labor and commercial reputation of the commanditer partner cannot be put as capital in a commandite partnership.
TCC Article 128 / 2-If the immovables included in the articles of association with the values determined by the expert are annotated to the title deed, the intellectual property rights and other values, if any, are registered in their private registries in accordance with this provision and if the movables are deposited to a reliable person, are accepted as capital in kind.Registration in the private registry removes good will.
(3) The provisions of the articles of incorporation, which include the capital ownership of the immovable or the obligation to establish a real right that exists or will be established on the immovable, shall be valid without seeking an official form.
(4) In the event that an economic value other than money, or the movable property are put as a capital, the company may directly save on them as the owner from the moment it gains legal personality.
(5) In case the immovable property or other real right is put as capital, it is required to be registered them with the land registry in order for the company to be able to have right of disposition of them.
(6) Requests for registration of property and other real rights in the land registry and notifications regarding registrations to other registries are made to the relevant registry ex officio and immediately by the trade registry manager.the right of the company to make unilateral requests is reserved.
1-b- Procedure for Adding Capital in Kind:
When it is wanted to put capital in kind to the company as capital, the value of the capital must be determined by an expert from the Commercial Court of General jurisdiction, in the jurisdiction where the company headquarters is located.The decisions given by the Commercial Courts of General Jurisdiction are final.
Article 131/1 of the TCC "The values to be assessed by the expert for movable and immovable properties put as capital are deemed to have been accepted by the relevant persons."
TCC article 343/1-the capital in kind, the enterprises and the same values to be taken over during the establishment are estimated by the experts appointed by the commercial court of general jurisdiction at the location where the company headquarters is located.
In the valuation report, it is stated that the valuation method applied is the most fair and appropriate choice for everyone in terms of the characteristics of the concrete event; the authenticity, validity and compliance with article 342 of the receivables included as capital, and their collectability and exact values; The amount of shares to be allocated for each asset placed in kind and its equivalent in Turkish Lira are announced with satisfactory justifications and in accordance with the accountability principle.The founders (…) (1) and stakeholders can object to this report. The expert decision approved by the court is final.
The purpose of determining the value of the movable and immovable properties by means of an expert is to prevent damage to the interests of both the company and the shareholders by determining the real value of the capital in kind.
Article 131/2 of the TCC "Unless otherwise agreed in the articles of incorporation, the ownership of the movable and immovable properties invested as capital belongs to the company and the rights have been transferred to the company."
It has been acknowledged that the articles of incorporation, which stipulates that the determined immovables should be invested as capital in the company, will be valid regardless of the specific form, that is, without making an official contract in the title deed.However, in this case, an annotation must be put to the relevant land registry after the establishment of the contract.In order for the established company to have power of disposition on the immovable, the immovables must be registered in the name of the company in the land registry.
In movable capital, it is obligatory to deliver the promised movable property to a reliable person.in order for the company to have power of disposition of the movables, it is sufficient that the articles of incorporation have been registered and announced.
It is possible for the shareholders to put a commercial enterprise as capital in kind to the company, and the transactions regarding the transfer of the enterprise must be completed in order to accept that the commitment has been fulfilled.
Although the transfer of the capital in kind or other capital within the transferred enterprise is not required one by one, the capital values of the transferred enterprise should be counted one by one in the article of incorporation in terms of determining and determining the capital value of the enterprise and the value determination should be made by the expert in the Commercial Court of general jurisdiction.
It should not be forgotten that although third party receivables may be brought to commercial companies as capital in kind, in joint stock companies, this receivable can be added as capital if it is "due".
In addition, a partner who has transferred her/his receivables to the company as capital cannot be relieved of her/his debt to invest a capital unless the receivables are collected by the company.
Following the articles of incorporation registered in the trade registry, the trade registry manager will notify the relevant registries(title deed, trademark, patent etc.) ex officio.
1-b- Violation of Capital Commitment:
The company may request and sue each partner to fulfill its obligation to invest capital, as well as claim compensation for losses incurred due to delay in fulfillment.A warning is required for claiming compensation.Partners can also file this suit in private companies. (TCC article 128/7)
In order to protect the rights undertaken by the partners as capital, precautionary measures can be requested by the founders against the partners.For the lawsuits to be filed upon measures, the period stipulated in the Code of Civil Procedure only starts from the date of the registration and announcement of the company. (TCC Article 128/8)
Although the law maker refers to the legal remedies that can be applied against the partner who fails to fulfill his commitment to invest capital in time and as agreed in the article of incorporation, in the paragraphs 7 and 8 of Article 128, and it is also determined other ways for each company.
However, if the capital has been agreed in cash but not paid in due time, the default interest will be paid as of the date of registration of the company, provided that the right to claim compensation is not prejudiced due to Article 128 of the TCC and if there is no provision in the articles of incorporation.
COMMITMENT NON-CASH CAPITAL BY FOREIGNERS TO THE FOUNDATION OF THE COMPANY:
in the Code No. 4785 Direct Foreign Investment as stipulated, the foreign investors are free to make direct investments in Turkey are subject to equal treatment with domestic investors.
Thus, foreign real and legal persons may establish a commercial company in Turkey.Foreign persons can become partners in the established company and, if they meet certain residence and time conditions, they can also engage in commercial activities individually.
It is possible for foreign real and legal persons to undertake to add non-cash capital as company capital.However, valuation of the capital other than cash is made within the framework of the provisions of the Turkish Commercial Code.
In the event that the securities of companies established in foreign countries are used as investment tools, the evaluation of the competent authorities or the courts of the country of origin or the international evaluation institutions are taken as basis for the determination of value according to the legislation of the country of origin.
FOUNDATION TYPES OF THE COMPANIES:
3-1- Joint Stock Company:
If the field of activity of the joint stock company is not one of the fields of activity that is stated to be subject to permission in the regulation published by the Ministry of Customs and Trade, if the founders undertake to pay the full capital in the article of incorporation that unconditionally approved by the notary public or signed in the presence of the trade registry manager or his deputy, it is established in the contract by expressing their will to establish a joint stock company.It must be announced in the Trade Registry where the company headquarters is located within 30 days.
The articles of incorporation must be made in writing and the signatures of all founders must be notarized, or the articles of incorporation must be signed in the presence of the trade registry manager or his/her assistant.
A joint stock company gains legal personality upon registration in the trade registry.
3-2- Limited Liability Company:
The requirement that the articles of incorporation will be made in writing and signed by the founders in the presence of personnel authorized at the trade registry directorate also applies to the limited liability company.
Limited liability company; It is established by the founders in the article of incorporation which is regulated in accordance with the law, which they undertake to pay the entire capital unconditionally, and signed in the presence of personnel authorized at the trade registry directorate, by declaring their will to establish.It must be announced in the Trade Registry where the company headquarters is located within 30 days.
A limited liability company gains a legal personality upon registration in the trade registry.
3-3- Collective Company:
The Article of incorporation of the collective company is also subject to written form and the signatures of the partners must be approved by a notary public or the article of incorporation must be signed in the presence of the trade registry manager or her/his assistant. (TCC article 212)
Within 15 days from the establishment of the company, it is obligatory to request a approvad copy of the article of incorporation to be registered with the trade registry in the place where the company headquarters is located.
The collective company gains a legal personality by registering in the Trade Registry.
A collective company whose contract has not been made legally or whose one or some of the records that have to be included in the contract is missing or invalid, is in the status of ordinary company.The provisions of the Turkish Code of Obligations regarding ordinary companies shall apply, provided that the provision of Article 216 of the TCC is reserved.
3-4-Commandite Company :
The law-maker has ordered that the provisions regarding the establishment and gaining of legal personality regarding the Commandite company shall be applied exactly in the matters regarding the establishment of the company and its gaining of legal personality.
In a commandite company consisting of active and commanditer partners, the active partner must be a real person.
It is an active partner whose liability is not limited to the creditors of the company. The partner with limited liability to the creditors of the company is called a commanditer.
The capital of the commanditer partner must be specified in the articles of incorporation.
group of companies
“Group of Companies” (Konzern) has entered our legal system with the Turkish Commercial Code numbered 6102.
In the article 195 of the TCC, it is regulated in which cases the legal bond between more than one company will form the group of companies.
According to the article text;
If a commercial company directly or indirectly owns the majority of the voting rights of another commercial company, or
If a commercial company has the right to elect a majority of the members that make up the majority to make decisions in the management body of another commercial company, directly or indirectly, pursuant to the article of incorporation, or
If a commercial company constitutes the majority of the voting rights of another commercial company, directly or indirectly, on the basis of a contract, alone or together with other shareholders or partners, or
If a commercial company can keep the other under control with a contract or otherwise with another way and if at least one of them centered in Turkey, is the first company dominant company, and the other is affiliated company.The rules regarding the group of companies are applied to them.It is observed that the control is regulated as "expanded control" in the provisions of the Turkish Commercial Code.
Group of companies are not structures in line with the corporate law theoretical structure.
the groups of companies does not have a legal personality and does not have a separate organizational structure or body.
The group of companies also does not have capacity to act and to have rights.The groups of companies is a legal concept that has been brought to increase the competitive power in commercial life and has been regulated by aiming to protect the interests of the community partners in this process.
In order to prevent circumvention of the provisions regarding groups of companies, with the article 195/5 of the TCC, it is stated that the one who dominates the group may not only be a commercial company but also other persons and structures such as a real person, an ordinary partnership, a foundation, an association and public legal entities.
In the 195th article of the Trade Registry Regulation, it was stated that the group of companies would consist of at least three companies, and a draft law was prepared in this regard within the scope of the law amendment in the TCC.
MUTUAL PARTICIPATION
Mutual participation is when the companies in the group of companies own at least twenty-five percent of each other's capital shares.
If one of the companies is dominant over the other at the same time, the other is an affiliated company;If both are dominant over the other at the same time, both are considered as both an affiliated and a controlling company.