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Company law is a branch of law within the scope of commercial law, which includes norms regarding the establishment, merger, division, transfer, type change, liquidation of commercial companies and examines the legal relations with commercial companies.
When the historical development process of commercial and company law is examined, legal regulations regarding trade were first introduced in the BC. In 2000, in the “Hammurabi” Laws, it was encountered with the regulations on interest, commission and companies. In the following ages, commercial and corporate law continued to develop in parallel with the developments in the social, cultural, political, economic and social fields. With the Modern Age, legalization movements gained momentum. A prime example of this is the French Commercial Code of 1807; however, the period when commercial companies became widespread and described as the century of commerce was experienced in the 20th century; In this century, especially due to the increase in international trade, the need for institutionalization in the field of trade has arisen. In this direction, commercial companies with legal personality in the modern sense were formed; This development has undoubtedly accelerated the modernization process of commercial and corporate law in order to resolve the main activities and disputes in the aforementioned field.
In our country, Islamic law was applied in the field of commercial and corporate law in the pre-Republican period; Regulatory provisions regarding this area are regulated in the Kitab-üş Company section of Mecelle-i Ahkam-ı Adliyye (Mecelle).
In the post-republic period, Islamic law was abandoned and the Turkish Commercial Code came into force in 1926. The said Law was repealed in 1956 and the Turkish Commercial Code No. 6762 entered into force; Finally, in 2011, the new Turkish Commercial Code No. 6102 entered into force. Provisions related to company law Articles 124-644 of the Turkish Commercial Code No. 6102. are included in the items. The provisions regarding ordinary companies are Articles 620-644 of the Turkish Code of Obligations No. 6098. arranged between the articles.
In the new Turkish Commercial Code, norms and rules in the form of reform, different from the abolished Law No. 6762, regarding company law are regulated.
There is no definition of commercial companies and articles of association in the Commercial Code. However, in Article 620 of the Code of Obligations, which includes the provisions regarding ordinary companies, the definition of ordinary partnership agreement is made. According to this; An ordinary partnership agreement is defined as an agreement in which two or more persons undertake to combine their labor and property to achieve a common purpose.
In commercial companies, the articles of association should contain certain elements. These;
common purpose element
It is shown as an obligation to exert effort and care in order to achieve the common goal.
The types of companies are limited in the Commercial Code. Commercial companies consist of collective, limited, limited, joint stock companies and cooperatives. Of these, collective, limited partnership and ordinary companies are sole proprietorships; Limited, joint stock companies and limited partnerships whose capital is divided into shares are capital companies. All of these commercial companies listed in the law have legal personality; Organizations other than these listed types of companies are considered ordinary companies, and such companies do not have legal personality.
Commercial companies may merge, divide or change types within the framework of the procedures specified in the law. Legal regulations regarding this are included in articles 134-194 of the Turkish Commercial Code.
According to this, company mergers are realized in two ways as new establishment and acquisition. In a merger in the form of a new establishment, a new company is established by merging the assets and liabilities of more than one trading company without being liquidated. In merger in the form of takeover, there is a participating (assigned) company and an accepting (acquiring) company. In this merger way, only the legal existence of the participating company ends; The assets of the participating company are transferred to the acquiring company without being liquidated. In Article 137 of the Commercial Code, some restrictions are foreseen for the merger. According to this; Companies intending to merge, draw up a written merger agreement, accept / sign this agreement by the management bodies and submit it to the approval of their general assembly. In addition, the preparation of a merger report by the parties and the registration of the merger decision in the trade registry are regulated in the law as a condition of validity.
Company splits are realized in two ways as full and partial splits. In the full division process, all assets of the company are divided into divisions and transferred to other companies. The partners of the demerged company acquire the shares and rights of the acquiring company. Subsequently, the transferred company in full division is terminated and its trade name is deleted from the trade registry. In partial division, one or more parts of the company’s assets are transferred to other companies. Shareholders of the demerged company acquire the shares and rights of the transferee company or the demerged company forms its subsidiary by obtaining the shares and rights in the acquiring companies in return for the transferred assets divisions.
Company division can generally be made within the scope of the limitations specified in Article 160 of the Turkish Commercial Code. If a company transfers parts of its assets to existing companies during the division process, a division agreement is made by the management bodies of the companies participating in the division. If the assets will be transferred to the companies to be established through the division, this time a division plan is prepared by the management body. The management bodies of the company participating in the division are also required to prepare a separate or joint division report on the division.
Legal forms/types of commercial companies can be changed within the framework of the limitations stipulated by the law. The new typed company will be a continuation of the old one. In conversion, the company’s governing body draws up a type of conversion plan; The said plan is in written form and is also submitted to the approval of the company’s general assembly. The conversion plan must contain the trade name of the company before and after the conversion, the headquarters and the statement regarding the new type, the company contract of the new type, the number, type, amount of the shares that the partners will have after the conversion or the explanations of the shareholders after the conversion.
As Par Law & Mediation Office, we provide support to many domestic and foreign client companies in the fields of takeover, merger, consultancy, trade, labor law, law of obligations, enforcement and bankruptcy law, so that our companies take healthy and safe steps in their trade.