Stages of establishing a joint stock company

In terms of establishment systems of joint stock companies, there are three types of systems: permission, normative and edict systems. Although there are some exceptional cases, the normative system for the establishment of joint stock companies has been adopted in Turkish legislation. Normative system refers to the system that is not subject to permission. As a matter of fact, Article 333 of the Turkish Commercial Code states: "Joint-stock companies, whose areas of activity will be determined and announced by the communiqué to be published by the Ministry of Customs and Trade, are established with the permission of the Ministry of Customs and Trade. Amendments to the articles of association of these companies are also subject to the permission of the same Ministry. Ministry examination can only be carried out in terms of whether there is a violation of the mandatory provisions of the law. Apart from this, the establishment of the joint-stock company and changes to the articles of association cannot be subject to the permission of any authority, regardless of its legal position, nature and field of operation." With his statements, he stated that joint stock companies are not subject to the permit system, with some exceptions.

With the new TCC, the gradual establishment procedure has been abolished. According to the law, joint stock companies are established according to the sudden establishment procedure. In addition, Law 346/1. The procedure for "establishment by undertaking public offering of shares" is also regulated in the article.

Article 337 of the Turkish Commercial Code regulates who can establish a joint stock company. According to the relevant article;

1- Real and legal persons who subscribe for shares and sign the articles of association are founders.

2- If the founders carry out the transaction written in the first paragraph on the account of a third person, this person is also considered the founder in terms of the liability arising from the establishment. The third party in question cannot claim that he did not know something that the person working on his behalf knew or should have known.

Article 338 of the Law regulates the number of founders. In order to establish a joint stock company, the presence of one or more shareholders is required. It is clearly understood from the regulation that a joint stock company can be established with a single person.

Founders can be real or legal persons. For real persons, capacity to act is required. It is possible for foreign legal entities to become company founders. It is also possible for joint stock companies or limited companies to be founders of joint stock companies.

JOINT STOCK COMPANY ESTABLISHMENT DOCUMENTS

Article 336 of the Turkish Commercial Code lists the founding documents of joint stock companies. According to the article, the founding documents are as follows;

1- Articles of association,

2- Valuation reports,

3- Contracts made with the company being established, the founders and other persons, and related to the establishment, including those regarding the acquisition of the month and business.

SUDDEN ESTABLISHMENT STAGES

There are two types of sudden establishment: simple and qualified sudden establishment. Simple sudden establishment is a system of establishment in which the capital consists only of cash. Qualified instant establishment is the type of establishment that requires the valuation and acceptance of capital in kind and the approval of some interests.

The first stage of establishing joint stock companies is the preparation of the articles of association. Then the capital payment phase begins. If permission is required to establish a company, permission must be obtained from the Ministry of Customs and Trade, and finally, the company must be registered in the trade registry and this registration must be announced. With registration, legal personality is acquired. As a matter of fact, Article 335 of the Turkish Commercial Code states: "The company is established by the founders declaring their will to establish a joint stock company in the articles of association drawn up in accordance with the law, in which they undertake unconditionally to pay the entire capital, and in which their signatures are notarized or signed in the presence of the trade registry manager or his deputy." It is shaped like. In the justification of the article, the constitutive effect of registration is clearly stated.

TTK 355 states, "Those who carry out transactions and undertake commitments on behalf of the company before registration are personally and severally liable for these transactions and commitments. However, if it is clearly stated that the transactions and commitments are made on behalf of the company to be established in the future and these commitments are accepted by the company within a period of three months after the registration of the company in the trade registry, only the company will be responsible." With this regulation, it introduced a preliminary partnership system in parallel with German law.

On the subject, the Supreme Court of Appeals dated 2015 said, "The case is about a claim for receivables due to the lease agreement signed using the stamp of a non-existent company. As it is understood from the records sent from the trade registry, as it is understood by the parties that the company specified as the tenant in the contract has not acquired legal personality, it is undisputed that the defendant will be responsible for the rents not paid in accordance with the contract and for the damage caused to the plaintiff, as he cannot have the authority to represent the company that does not have the legal capacity to act." There is a decision as follows.

Below, all stages will be examined separately under separate headings.

PREPARATION OF ARTICLES OF ASSOCIATION IN JOINT STOCK COMPANIES

The articles of association are very important for joint stock companies. The articles of association are described as the company constitution in the justification of Article 339 of the Turkish Commercial Code.

According to Article 339 of the Turkish Commercial Code, "The articles of association must be made in writing and the signatures of all founders must be notarized or the articles of association must be signed in the presence of the trade registry director or his assistant."

In addition, in accordance with Article 340 of the Turkish Commercial Code, the content of the articles of association is subject to the principle of mandatory provisions. According to the article, "The articles of association may deviate from the provisions of this Law regarding joint stock companies only if this is expressly permitted in the Law. Complementary provisions of the articles of association that are permitted by other laws shall have effect specific to that law."

In accordance with the principle of mandatory provisions, it has been regulated that the mandatory and optional provisions to be added to the contract are subject to the permission of the law.

The content of the articles of association is regulated in Article 339 of the Law. According to the provision, there are some mandatory elements that must be included in the articles of association. In addition, it is also possible to add some optional elements to the articles of association.

MANDATORY ELEMENTS OF JOINT STOCK COMPANY AGREEMENT

Compulsory elements that must be included in the articles of association of the TTK joint stock company;

a) The trade name of the company and the location where its headquarters will be located.

b) The business subject of the company, with its essential points stated and defined.

c) The capital of the company and the nominal value of each share, the form and conditions of their payment.

d) Share certificates will be registered or bearer; privileges granted to certain shares; transfer limitations.

e) Rights and rights acquired as capital other than money; their values; The amount of shares to be given in return for these, in case of a business or company being taken over, their price, the cost of goods and rights purchased by the founders on behalf of the company for the establishment of the company, and the amount of wages, allowances or awards that should be given to those who provided services in the establishment of the company.

f) Benefits to be provided to the founders, members of the board of directors and other persons from the company's profits.

g) Number of board members, those authorized to sign on behalf of the company.

h) How general assemblies will be called to meetings; voting rights.

ı) If the company is limited to a period, this period.

i) How to make company announcements.

j) Types and amounts of capital shares committed by shareholders.

k) Accounting period of the company.

He stated as follows.

In the 3rd paragraph of the article, it is regulated that the first members of the board of directors will be appointed by the articles of association. Therefore, it is mandatory to include the first members of the board of directors in the company's articles of association. In terms of clause d of the article, the following should be taken into consideration. If there is a qualified sudden establishment, the valuation is carried out by experts appointed by the commercial court of first instance. In addition, TCC article 342/1. Pursuant to the article, "Asset elements, including intellectual property rights and virtual environments, which do not have any limited real rights, liens or measures on them, which can be evaluated and transferred in cash, can be invested as capital in kind. Service acts, personal labor, commercial reputation and overdue receivables cannot be capital."

OPTIONAL ELEMENTS

We have also stated that optional provisions can be added to the contract in addition to the mandatory elements listed in the law. These optional elements should not contradict the principle of mandatory law. A provision regarding privileged shares can be added to the articles of association. Again, optional provisions can be created in accordance with the matters specified in Articles 347, 366, 394, 530 of the law.

Regarding the provisions that can be added to the articles of association, the Supreme Court said, "Defendant, the previous and amended Article 8 of the company's articles of association stipulates that only the shareholders will be elected to the Board of Directors. There is no obstacle to requiring the members of the board of directors to be shareholders in the articles of association in the Joint Stock Company. (Assoc. Prof. Dr. Nejla Akdağ Güney, Anonim Şikret Board of Directors, Page 25). In addition, TCC no. 6102, Article 359. Unless a subject is regulated in a restrictive manner, complementary articles of association may be decided on the subject. For this reason, other qualifications may be required for persons to be elected to the board of directors, such as being a shareholder or having a certain minimum share. These provisions do not constitute a violation of Article 340 of the TCC. Assoc. Prof. Raif Karasu, Principle of Mandatory Provisions in Joint Stock Companies, 2nd edition, page 150). In this case, the provisions of the articles of association regulating the obligation of those to be elected to the Board of Directors are also valid in the period when the new TCC is implemented. Therefore, it was decided to reject the case regarding this section on the grounds that Article 312/2 of the Turkish Commercial Code numbered 6762 was abolished by the new Turkish Commercial Code. "It was not right, it required subversion." There is a decision as follows.

PAYMENT OF JOINT STOCK COMPANY SHARE PRICES

Initial capital in joint stock companies must be at least 50,000 TL, and if the registered capital system is chosen, the capital must be at least 100,000 TL. However, TCC does not require the capital to be fully paid. According to Article 344 of the Turkish Commercial Code, "At least twenty-five percent of the nominal value of the shares committed in cash is paid before registration, and the rest is paid within twenty-four months following the registration of the company. The entire premium for the issuance of shares is paid before registration."

Tek kuruculu anonim şirketler bakımından da durum aynıdır.

JOINT STOCK COMPANY MINISTRY PERMIT

The establishment of joint stock companies is not subject to permission due to the adoption of the normative system. According to Article 333 of the Turkish Commercial Code, companies for which ministerial permission is mandatory are determined by notification. According to the communiqué, the establishment and articles of association of banks, financial leasing companies, factoring companies, consumer finance and card services companies, asset management companies, insurance companies, holding companies, companies operating foreign exchange kiosks, companies engaged in public retailing, agricultural products licensed warehousing companies, product specialized stock exchange companies, surveillance companies, technology development zone management companies, companies subject to CMB, free zone founder and operator companies are subject to ministerial permission.

In addition, Article 210 of the Turkish Commercial Code grants the ministry the authority to audit and regulate. According to the relevant article;

1-The Ministry of Customs and Trade is authorized to issue communiqués regarding the implementation of the provisions of this Law regarding commercial companies. Trade registry offices and companies comply with these communiqués. The transactions of trading companies within the scope of this Law are inspected by the inspection staff of the Ministry of Customs and Trade. The principles and procedure of this audit and the transactions subject to audit are regulated by the regulation prepared by the Ministry.

2-Other ministries, institutions, boards and organizations may make regulations regarding companies only within the limits of the authority granted to them by law and subject to the foreseen purpose, subject and form.

REGISTRATION AND ANNOUNCEMENT IN JOINT STOCK COMPANIES

TTK 354:

"The entire company's articles of association shall require permission for joint stock companies to be established with the permission of the Ministry of Customs and Trade, and for other companies, in accordance with the first paragraph of Article 335, it shall be registered with the trade registry of the place where the company is headquartered and announced in the Turkish Trade Registry Gazette within thirty days following the establishment of the company."

After the registration phase is completed, the joint stock company acquires legal personality. During the establishment phase, the conditions of the preliminary partnership introduced by Article 355 of the Turkish Commercial Code should be examined in terms of liability.

WHAT IS AN ON-JOINT STOCK COMPANY?

Joint-stock companies gain legal personality upon registration. In the stages until establishment, TCC 355 regulated how the company would be responsible to third parties. In order to talk about the existence of a subsidiary company, there must be more than one partner. Therefore, it is not possible to talk about a front company in joint stock companies with a single founder.

According to Article 355 of the Turkish Commercial Code, "Those who carry out transactions and undertake commitments on behalf of the company before registration are personally and severally liable for these transactions and commitments. However, if it is clearly stated that the transactions and commitments are made on behalf of the company to be established in the future and these commitments are accepted by the company within a period of three months after the registration of the company in the trade registry, only the company will be responsible."

The preliminary company ends with the establishment of the company.

CASE FOR TERMINATION OF A JOINT STOCK COMPANY

The situation where there are deficiencies in the establishment of a joint stock company is regulated in Article 353 of the Turkish Commercial Code. According to the article, if there are deficiencies in the establishment of the company, the company can be terminated by filing a lawsuit.

In addition to its founding effect, registration also has a restorative effect. This principle is called the principle of sanitizing the registry. As a matter of fact, in the justification of Article 353 of the TCC, "The principle that the nullity or nonexistence of a joint stock company cannot be decided after a very short period of months, starting from its establishment, and that registration repairs (restores) all kinds of legal injuries, is a necessary consequence of the need to protect transaction security and is a fundamental principle of joint stock company law. There is no exception to this principle, except for the provision of the second paragraph of Article 47 of the Turkish Civil Code. The application of the second paragraph of Article 47 of the Civil Code to joint stock companies is questionable. For this reason, applying the invalidity cases defended in the Swiss doctrine to Türkiye based on the provision of Article 47 of the Civil Code is a matter that should be discussed. On the other hand, termination is more in line with the balance of interests. In the presence of certain important reasons in the establishment and capital increase, this termination decision will have the same result as the termination of the company. It is stated that the violation of the legal provisions that causes the termination must have significantly endangered or violated the interests of creditors, shareholders and the public.

As can be understood from the justification of the article, the legislator has regulated that a termination lawsuit can be filed due to deficiencies or mistakes made in the registration. The termination case is regulated in Article 353 of the Turkish Commercial Code. According to the article;

"The nullity or non-existence of a joint stock company cannot be decided. However, if the interests of creditors, shareholders or the public are seriously endangered or violated by acting contrary to the provisions of the law during the establishment of the company, upon the request of the board of directors, the Ministry of Customs and Trade, the relevant creditor or shareholder, the commercial court of first instance in the place where the company is headquartered decides to terminate the company. The court takes the necessary measures at the time the case is filed. In order to eliminate the deficiencies, the articles of association or the law The court may grant time to correct the contradictory issues. Evidence and all necessary information are added to the petition. Evidence cannot be submitted during the trial phase, nor can the court be asked to wait for a lawsuit or provide information. However, if the concrete event justifies it, the court may accept the plaintiff's request to present evidence and bring information, subject to a strict deadline. The case is subject to the procedure for urgent matters. The case must be filed within the three-month limitation period following the registration and announcement of the company. The court decision, which is filed and finalized, is immediately and ex officio registered in the trade registry and announced in the Turkish Trade Registry Gazette, upon notification of the court. In addition, the board of directors places the registered and announced matter on its website.

ESTABLISHMENT OF A JOINT STOCK COMPANY BY UNDERTAKING THE PUBLIC OFFER OF SHARES

Establishment through public offering commitment, regulated by Article 346 of the Turkish Commercial Code, is one of the types of establishment. According to the relevant article;

"The provisions for the cash shares, which have been committed in the articles of association and which have been stated and also guaranteed in the articles of association that will be offered to the public by the committed holders within two months at the latest after the registration of the company, are paid from the income obtained from the sale. The public offering of the shares is carried out in accordance with the capital markets legislation. At the end of the sale period, the nominal value of the shares and the issuance premium, if any, is paid to the company, and the remaining amount after deducting the expenses is paid to the shareholders who offer the shares to the public.

The entire price of the shares offered to the public but not sold in time, and twenty-five percent of the prices of the shares not offered to the public in time, shall be paid within three days following the two-month period.

The proportion of shares to be offered to the public is left to the initiative of the founders. There is no legal limitation.

In this form of establishment, Article 346/2 of the Turkish Commercial Code. There is no obligation to deposit the advance payment specified in the article to the bank.

Public offering is made in accordance with CMB legislation.

It must be stated and guaranteed in the articles of association that the shares will be offered to the public within two months from the registration of the company.

All responsibility lies with those who undertake and the board of directors.