26 January 2022 ( 29 views )

Establishment of Joint Stock Company Joint Stock Company According to Turkish Law

Anonim Şirket Kuruluşu (TTK 331356)
Sermayenin tamamı getirilip geri alınmaz ise kanun koyucu buna engel olur. Sorumsuzluk sermaye ile satın alınır. Sermaye artırımı ve azaltımı da kurucu kanun hükümlerinde belirlenir.

1957 yılından itibaren anonim şirketin kurulması izne tabi değildir. Sadece TTK m. 333'e göre kuruluş, Ticaret Bakanlığı tarafından yayınlanan şirketler için izne tabidir.

Kuruluş belgeleri ile ticaret siciline gidilerek şirket kurulur. Normatif bir sistem var.

Holding şirketlerinin kurulması için izin alınması gerekmektedir. Anonim şirketin asıl amacı başka şirketlere ortak olmak ve başka şirketlerde pay sahibi olmak ise holding söz konusudur. Birincil amaç bu olmadığı sürece izin gerekmez.

Kuruluşu izne tabi sınırlı sayıda anonim şirkette esas sözleşme değişiklikleri de izne tabidir. Kuruluşu izinle olanlar, kuruluştan sonra dahi esas sözleşmede yapılacak her türlü değişiklik (tadilat) izne tabidir ve bakanlıktan izin almak zorundadır.

Şirketin tescil edilmesine kadar geçen sürenin tamamına kuruluş denir. Tescil davasının ilanı ile kuruluş tamamlanır.
Kuruluş işlemi tescil değil, esas sözleşmenin imzalanmasıdır.
Ticaret siciline tescil ile şirket tüzel kişilik kazanır.
The articles of association can be notarized or signed in front of the manager or assistant manager in the trade registry. At the time of signature, a company is established and registration gives legal personality.

In joint stock companies, the founders are those who sign the articles of association and undertake at least one share. Unlike other types of companies, it is not enough to sign the articles of association and at least one share must be committed.

TTK m. 337 If you sign the articles of association on behalf of someone else, that person also becomes the founder. If there is a deficiency in transactions such as the case of division, the founders will also be responsible as a result of signing on their account.

In the new law, a joint stock company can be established with a real or legal person. The rationale for this is that there are no straw men and it aims to enable limited liability traders. A oneperson joint stock company can also be formed after the establishment. In this case, a single person informs the board of directors of this situation within 7 days, and the board of directors registers and announces that the company has become a single person within 7 days. Those who act on the contrary are held responsible for the resulting damage.

Preparation of the Articles of Association
Company articles of association have a normative character. After establishing the rules with the articles of association, after saying this is the company, this is the basic order, this is its purpose, its internalexternal relations are as follows, its organs are as follows, this creates a norm character that binds all current or future shareholders. The company rules, which became binding upon signing in the articles of association, already have a binding effect in the articles of association. Even if the addressees change, the articles of association continue to be binding. A structure is formed in such a way that the addressee of the articles of association is everyone, independent of the signers.
The company contract is a contract in the sense of the law of obligations. Main contract norm.

Basic Functions of the Articles of Association
Founding Document: The document establishing the joint stock company.
Being Individualizing: Nothing that is not expressly permitted by the law of TTK 340 cannot be written in the articles of association. Limited individualization.
Protective Quality: Cases of incompatibility with the articles of association lead to the invalidity of the relevant transaction and or the responsibility of the persons who made it. In this context, the articles of association have the force of a statute and protect the company. The resolution of the general assembly in violation of the Articles of Association is invalid/cancellable. The decision is crippled. In case of a board decision that is contrary to the articles of association, the board of directors is responsible for this decision.
Publicizing Effect: After signing the articles of association, registration and announcement takes place. With the announcement, third parties also become binding.

The interpretation of the articles of association should be like a legal provision interpretation. LiteraryPurposeSystematic
TeleologicalLiterarySystematic Interpretation
If there is an ambiguous/in need of interpretation statement in the articles of association, it doesn't matter what the drafters mean to it, and the law should act like interpretations.

TTK m. 339 Mandatory Minimum Content
If the name of a partner is to be included in the title of the joint stock company, the remaining part is not shortened. If the address of the company is not specified, this is the reason for the termination of the company.

The following matters are written in the articles of association:
a) The company's trade name and the place where its headquarters will be located.
b) The business subject of the company, with the essential points specified and defined. The answer to the question of what this company will do depends on the business subject of the company in the transactions made by the Board of Directors. Working capital is given for the business subject specified in the articles of association. Transactions contrary to this will be invalid.
c) The capital of the company and the nominal value of each share, the form and conditions of their payment. At least 50.000 TL capital, 100.000 in registered capital, capital must be divided into shares with a minimum value of 1 kuruş. In the articles of association, the capital and how many shares it is divided into must be written.
d) The share certificates will be registered or bearer; privileges granted to certain shares; turnover limits. share certificate is not mandatory. Shares are written either to the name or to the bearer. If the promissory note has not been issued, the bare share will be in question and the transfer of the share will take place in accordance with the provisions of the assignment of the receivable. If the share certificate is issued and the shares are registered, the transfer takes place with an endorsement to be written on the back of the share certificate. If there is a written promissory note, the transfer of the share will result in the transfer of the share.
e) Rights and benefits invested as capital other than money; their values; the amount of the shares to be paid in return for these, the price of these in case of a transfer of a business and the month, the cost of the goods and rights purchased by the founders for the establishment of the company on behalf of the company, and the amount of the fee, allowance or award that should be given to those who served in the establishment of the company. The entire capital can be pledged in cash. if this is the case, at least one fourth of this amount must be brought in the establishment. Since a legal entity is not formed, this 4:1 ratio is deposited into the warehouse account opened in the name of the company being established. If the company is not established, the money can be withdrawn with a letter to be given to the bank by the founders. There must be a receipt among the establishment documents, otherwise the registration will not take place.

Capital can be realized in the form of the month. It can be dominated and converted into money. If there is a commitment in kind, the appraised value for the month must be determined by the expert. As a result of the application to the court, the expert looks at it.

f) Benefits to be provided to the founders, members of the board of directors and other persons from the profits of the company. The first members of the board of directors are specified in the articles of association. The election of the members of the board of directors is not a change in the articles of association. The general assembly can take decisions according to two resolutions: TTK art. simple 418, difficult 421. 418 is applied when electing the board of directors.
g) Number of members of the board of directors, those authorized to sign on behalf of the company.
h) How the general assemblies will be convened; voting rights.
ı) If the company is limited to a period, this period.
If the business continues at the end of the period, the company will be for an indefinite period.
i) How to make announcements of the company. generally in the Turkish Trade Registry Gazette. in the 3 highest circulation media.
j) Types and amounts of capital shares committed by the shareholders. The distinction between capital commitment and performance is important. It is possible to fulfill a commitment of 10.000 TL, in cash, in exchange for the month.
k) Accounting period of the company. at least 6 months
(3) The first members of the board of directors are appointed by the articles of association and the reason is to ensure the establishment of bodies.

TTK m. 340: Any other matter not expressly permitted by the law cannot be written into the articles of association. Ideas can be followed (requirement to be a university graduate)

TTK m. 577579: The logic of anonymizing what you do not foresee in Limited. 340

TTK m. The violation of 340 is null and void and is deemed unwritten. It doesn't even count as the beginning of written evidence. There is a distinction here, teacher is in the minority. He says that the majority clause is in the articles of association and does not bind the company, but this provision is binding between the shareholders like the debt clause agreement and the shareholders can file a claim for compensation for the damage they have suffered. Hodja says 340 as a minority is a mandatory rule of law. The provisions of the articles of association that are contrary to the mandatory rule of law are null and void. Therefore, it has no effect even among the shareholders. It is considered unwritten.

There is no hierarchical order between the general assembly and the board of directors in a joint stock company.

The first general assembly of the joint stock company is formed by the meeting of the shareholders at the time of signature. It is possible for the shareholders to represent each other or to represent a nonshareholder. This is also possible at the first general meeting. Representative signature is also possible.

The first board of directors is appointed by the articles of association.

Establishment Documents
Articles of Association
Receipt showing that the price has been paid
Power of Attorneys in Representation
Declarations of Acceptance of the First Board of Directors

Companies acquire the capacity to act with the establishment of the organization and the capacity to act with the formation of their organs. A joint stock company, on the other hand, has the capacity to act at the establishment stage. However, it does not acquire legal personality.

2 Ordinary Companies in the Time Until Registration = PreCompany Issue
Ordinary Company: The purpose of establishing a joint stock company among the founders. This phase is completed with the signing of the articles of association. If a debt has been made for this purpose, the founders are jointly and severally liable with all their assets. The ordinary company is liquidated after the signature of the articles of association.
Ordinary Company: There is an Articles of Association regarding the management in this ordinary company. Liability is formed. The board of directors does the work. The registration of the joint stock company in the trade registry ends without liquidation.
The rights arising from the transactions made during the period from the signing of the articles of association to the registration pass to the joint stock company without the need for anything else.
Debts also pass to the joint stock company, provided that they are undertaken by the joint stock company. If not, the founders are still responsible.

registers within 3 months at the latest.

After signing the articles of association, the board of directors cannot dispose of the basic capital until it is registered. After registration, the bank releases that money.

TTK m. 356:
cheating against the law
ARTICLE 356 (1) Contracts regarding the acquisition or leasing of an enterprise or company for a price exceeding one tenth of the capital within two years following the registration of the company shall not be valid unless approved by the general assembly and registered with the trade registry. All kinds of dispositions, including payments made before the ratification and registration of these contracts, are void.
(2) Before making the decision of the general assembly, an expert to be appointed by the commercial court of first instance where the company is located, upon the request of the board of directors, appraises the businesses and months to be taken over or leased by the company. The report is official.
(3) The third and fourth paragraphs of Article 421 are applied to the meeting and decision quorum.
(4) Sözleşme, genel kurulun onay kararı ile tescil ve ilan edilir.
(5) Şirketin faaliyetlerine konu olan veya cebri icra yoluyla iktisap edilen ay ve işyerleri hakkında bu madde hükmü uygulanmaz.

İki yıl içinde operasyona konu olmayan bir ay satın alınırsa tekrar mahkemeye götürülür ve bilirkişi atanır. Genel kurul onayından sonra.

Hisseler birileri tarafından taahhüt edilmelidir. Kimsenin söz vermediği bir paya yer yoktur. Buna kısa ihracat denir. Payda taahhüt yoksa kurucular tarafından taahhüt edilmiş sayılır. Bu, halka arz yoluyla kuruluş için de geçerlidir.

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