1.
In General
Undoubtedly,
the "capital", which provides the main source of financing of the
company, has a special importance in joint stock companies. The fact that the
shareholders of joint stock companies are not liable for the debts of the
company, in other words, joint stock companies are liable limited to their
capital, makes the concept of "capital", which is the only source to
which creditors can resort, extremely important. Within the scope of the
capital that the shareholders undertake to contribute, the concept of
"capital in kind" will come to the fore in the event that a value
other than cash is contributed to the company as capital, in addition to the
fact that the capital can be brought in cash. One of the elements that can be
brought as capital to joint stock companies is immovable property. The
procedures to be followed in bringing immovable property as capital in kind to
a joint stock company and the evaluations regarding the existence of burdens
such as limited real rights, attachment and injunction on the elements of
capital in kind will constitute the subject of this study.
2.Procedures to
be Followed in Bringing Immovables as Capital to Joint Stock Companies
The
introduction of real estate as capital in kind to joint stock companies takes
place in two stages, namely "commitment transaction" and
"disposition transaction".
Pursuant to
Article 128/1 of the TCC; "Each shareholder is indebted to the company
for the capital that s/he has undertaken to contribute through a duly drawn up
and signed company agreement."
At this point,
the commitment stage consists of the commitment of the shareholders of the real
value subject to the commitment that may be brought to the joint stock company
as capital in kind, its registration in the articles of association and the
valuation procedure of the real value to be taken as the basis for the capital
commitment. Following the commitment to bring the rights in kind as capital to
the joint stock company, the ownership will be acquired by the company upon the
completion of the disposition process stage, which requires the company to go
through the registration process with the land registry in order to be able to
dispose of them, and thus, it will become possible to carry out disposition
transactions.
Regarding this
process consisting of two stages, we will specifically mention the sub-heading
of the valuation to be carried out by the experts regarding determination and
recording of the monetary equivalents of capital values other than cash, and we
will be briefly mentioning the remaining issues. Namely;
Regarding the
form of the commitment transaction; although the commitment transaction for the
transfer of immovable property is subject to the official form requirement
according to the general provisions, with the special regulation in the TCC,
the form requirement regarding the immovable property as capital for joint
stock companies is extremely mitigated. Article 128/3 of the Turkish Commercial
Code No. 6102 sets out that "The provisions of the company agreement,
which include the obligation to include immovable property or a real right
existing or to be established on immovable property as capital, are valid
without the requirement of formal form." As such, inclusion of the
commitment to subscribe immovables as capital in kind in the articles of
association of the company shall be sufficient to validate the commitment of
capital in kind without the requirement of formal form, without the need for a
separate and additional agreement other than the articles of association.
Within this
framework, the exception to the obligation to execute the agreement regarding
the transfer of the immovable property before the land registry officer or
through a notary public in the form of a promise to sell, is the issue that the
immovable property may be contributed as capital in kind to capital companies.
Pursuant to the
Art. 128/2 of the TCC; "Immovables, which are included in the company
agreement or articles of association with their values determined by an expert,
shall be accepted as capital in kind, provided that they are annotated to the
title deed, intellectual property rights and other assets are registered in
their special registers, if any, in accordance with this provision, and
movables are entrusted to a trustworthy person. Registration in the special
registry removes good faith." Pursuant to the Article 128/2 of the
TCC, an annotation must be made in the land registry regarding the commitment
to bring the immovable as capital to the joint stock company. At this point, it
is worth noting that an asset value that does not yet exist cannot be subscribed
as capital in kind to a joint stock company. Since the absence of an annotation
will constitute an obstacle to the registration of the partnership, the value
committed as capital in kind must exist before registration.
Further, the
value of the assets undertaken to be subscribed as capital must be determined
by an expert, this value must be specified under the articles of association,
signed and notarized, and the annotation must be realized by applying to the
registry office.
Pursuant to the
Article 343 of the TCC; "The capital in kind subscribed and the
enterprises and real estate to be taken over during the establishment shall be
appraised by the experts appointed by the commercial court of first instance in
the place where the company headquarters will be located. Under the valuation
report, the valuation method applied is the fairest and most appropriate choice
for everyone in terms of the characteristics of the concrete case; the
authenticity, validity and compliance with the Article 342 of the receivables
contributed as capital, their collectability and their full value; the amount
of shares to be allocated for each asset contributed in kind and their Turkish
Lira equivalent shall be explained on satisfactory grounds and in accordance
with the requirements of the principle of accountability... " In the
continuation of the wording of the article, unlike the ECL, instead of the
system of appointment of the expert by the general assembly, the system of
valuation by the experts appointed by the commercial court of first instance in
the place where the company headquarters will be located has been changed. As a
matter of fact, the aforementioned regulation is appropriate and proportionate
as it makes the valuation to be made by independent experts much more
important within the framework of the collective solution to be brought within
the scope of the applicable regulations and practice, as will be more clearly
understood with our explanations below, in case there is a burden on the
relevant immovable.
The phrase
"...the valuation method applied is the most fair and appropriate choice
for everyone in terms of the characteristics of the concrete case" under
the Article 343 of the TCC allows the expert to use the valuation method that
he finds appropriate for each item of capital in kind in the concrete case. [1]
In addition, the phrase "on satisfactory grounds and in accordance with
the requirements of the principle of accountability" is an appropriate
regulation introduced in order to prevent arbitrariness.
However, what
has been criticized in the doctrine here is that the selection of "the
commercial court of first instance in the place where the company's
headquarters will be located" will make it difficult to make the
valuation of the absolute jurisdiction rule in the event that the immovable
property to be capitalized is located in a place other than the place where the
company's headquarters will be located. [2]
In addition,
another criticism here is that the order of the establishment procedures was
omitted while determining the authorization rule. This is because the valuation
report should be prepared first, and then the articles of association should be
prepared. At the time of the application to the court in order to execute the
valuation procedure, the articles of association will not have been prepared
yet, and therefore, the company headquarters, which should be specified in the
articles of association, will be uncertain. In this case, the legislator has
regulated an unenforceable authorization rule. This seemingly minor regulation
regarding the authorization rule, which we have difficulty in making sense of,
supports our views below that the legislator has adopted a simplistic attitude
towards the subject matter of our article.
At this point, although Article 384 of the CCP, which regulates
jurisdiction in non-contentious judicial proceedings, may be applicable in the
valuation procedure, it does not change the fact that the subject matter of our
article is in need of detailed study and regulation, that the applicable
regulations are insufficient and that there are implementation problems. [3]
Pursuant to the
Article 339/1 of the TCC; "The articles of association must be 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 deputy."
Likewise, in
the continuation of the provision, the matters to be set out under the articles
of association are specified, and Article the 339/2-e of the TCC reads as
follows: "Rights and real property, other than money, that have been
contributed as capital; their values; the amount of shares to be given in
return for them; in the event that a business or real property is taken over,
the value thereof; and the value of the goods and rights purchased by the
founders for the establishment of the company on the account of the company,
and the amount of the wages, allowances or rewards that should be given to
those who have rendered services in the establishment of the company. " As
can be understood from the wording of the law, the value of the assets to be
put as capital in kind must be written under the articles of association of the
company. Therefore, the articles of association cannot be written without this
valuation to be performed by experts. In this case, it is very clear that the
value of the assets to be taken as a basis for the capital commitment must be
available before the articles of association are drafted.
Further,
with respect to the disposition transaction, pursuant to the Article 128/5 of
the TCC Nr. 6102; "In the event that immovable property or other real
right is subscribed as capital, registration with the land registry is required
for the company to dispose thereof." The TCC explicitly stipulates
that the acquisition of ownership by the company is only possible through
registration. Paragraph 6 of the aforementioned article sets out that the
request for the registration of the property right in the land registry shall
be made ex officio and immediately by the trade registry director, and in
addition, the company's unilateral right of request is reserved.
3. Current Situation of
Immovable Properties with Limited Real Rights, Liens, Encumbrances, Measures,
etc. under the Applicable Regulations
Article
1 of the Turkish Commercial Code Nr. 6102 defines the Turkish Commercial Code
as an integral part of the Turkish Civil Code Nr. 4721. In this case, the
concept of "property right", as set out under the Article 683
of the Turkish Civil Code Nr. 4721, constitutes the basis of the assets to be
contributed to a company as capital in kind.
Article
342 of the Turkish Commercial Code Nr. 6102 titled "Elements of assets
that may be contributed as capital in kind" reads as follows: "(1)
Elements of assets, including intellectual property rights and virtual media,
on which there is no limited real right, attachment and injunction, which can
be valued and transferred in cash, may be contributed as capital in kind. Acts
of service, personal labor, commercial reputation and outstanding receivables
cannot be capital. (2) The provision of Article 128 is reserved hereby."
As it is
understood from the wording of the article, it is required that the assets that
may be capital must be transferable and measurable in money. When the provision
of the Law is analyzed, only assets that do not have a limited real right,
injunction or attachment on them can be brought as capital in kind to capital
companies.
The accuracy of the regulation set forth by the
legislator that immovables with certain impositions on them cannot be put as
capital in kind in capital companies is highly controversial and the relevant
regulation creates problems in practice. As will be explained in detail below,
we are of the opinion that the aforementioned regulation needs to be reviewed
and amended both in terms of the current conjuncture of our country, due to its
disruptive effect on uniformity in practice, and in terms of security of legal
interpretation.
4. The Importance of Expert Valuation Procedure for
Acceptability of Immovables with Encumbrances, Liens, Pledges, Easements,
Encumbrances, etc. as a Basis for Capital Commitment
Regarding the value to be taken as the basis for the capital commitment and
the valuation stage regarding determination of this value, determination and
recording of the monetary equivalents of capital values other than cash is an
obligation clearly regulated by the legislator. In the case of a capital in
kind commitment, the necessity of the valuation of the relevant asset value by
experts is beyond explanation in the face of the clear provision of the law. However,
the main point to be emphasized here is that the care, importance and trust to
be given to the expert appraisal process is very important for the basis of our
arguments regarding the amendments to be made under the current applicable
regulations.
In this context, the view, which we also agree with, that the existence
of certain impositions such as liens, pledges, easements, encumbrances, etc. on
immovables does not prevent the immovables from being put as capital in kind,
since the value decreases caused by these impositions can be determined as a
result of the valuation to be made by the experts, and the remaining net value
of the immovable can be taken as the basis for the capital commitment after
deducting the value decreases from the base value, is more in line with the
interests to be protected, equity and today's economic conditions.
Although there
are concerns regarding the objectivity of the valuation in practice and we find
these concerns reasonable, there is no doubt that if the procedures are
operated correctly and safely, it will not become an insurmountable problem. At
this point, we are of the opinion that if the persons, institutions, and
commission staff who will work on the subject are selected from expert teams,
the procedures will function in a healthy manner, eliminating the concern that
the company's capital will remain uncovered.
In the event
that there are certain impositions on the elements of capital in kind, the fact
that the valuation procedure to be carried out by the experts may be carried
out and a reduction may be made by making a valuation according to the weight
of the imposition in question, may observe the principle of protection of
creditors. As a matter of fact, Ünal Tekinalp, the chairman of the Scientific
Commission of the Turkish Commercial Code Nr. 6102, has personally addressed
this issue by stating that "... by introducing an exception to the Article
342 of the TCC, acceptance of capitalization with the remaining value by
deducting the debt secured by the collateral as a result of the expert
examination would be in accordance with the balance of interests...".
[4]
Likewise, the decision,
bearing the Basis number 2017/364 and the Decision number 2018/6494 and dated
18.10.2018, of the 11th Civil Chamber of the Court of Cassation
regarding the mortgaged immovables that are desired to be put as capital in
kind in the capital increase of the limited liability company, reads as
follows: "...According to the reversal decision observed by the court
and the scope of the entire file; there was a mortgage on all three immovables
subject to the lawsuit before the aforementioned decision of the board of
shareholders, this situation is contrary to the Article 581 of the Law Nr.
6102. However, the total value of the immovables is below the mortgage debt,
and the decision of the board of shareholders to put the immovables into the
company as capital in kind...is contrary to the law", and the local
court's decision accepting the case was upheld. The statement "...that
the total value of the immovables is below the mortgage debt..."
in the reasoning of the decision supports our opinion that -the value
decreases caused by these impositions and/or impositions on the immovable can
be determined as a result of the valuation to be made by the experts and that
the remaining net value of the immovable can be taken as the basis for the
capital commitment after deducting the value decreases from the base value. [5]
Likewise, the
decision, dated 05.12.2019, of the Commercial Court of First Instance reads as
follows: "The lawsuit, in terms of its legal nature, consists of the
request for determination of the value of the immovables to be put as capital
to the joint stock company under the Articles 342 and 343 of the law numbered
6102. In the examination of the title deed record subpoenaed from the Land
Registry Office, it was seen that 5630/6150 shares of the real estate in the
nature of a field, registered in Istanbul, on the parcel …, were registered in
the name of Ö. Ü., 520/6150 shares were registered in the name of K. A., and a
mortgage of TRY 3.750.000 was imposed on the immovable in favor of ... Bankası
A.O.. It is understood that there is nothing contrary to the law in the
determinations under the expert report received by our court, and that there
are mortgage records on the immovable property registered in Istanbul, on the parcel
…, consisting of 10 floors and with an area of 10.400 m2. As a rule, there is
no legal obstacle for a mortgaged immovable to be put into a company as capital
in kind. However, the real value of these immovables must be more than the
value of the mortgage that restricts it. The mortgaged immovable becomes
capital with this residual value and up to its residual value. Otherwise, the
capital commitment and placement would be a fictitious transaction.
Accordingly, it has been determined by the experts that the real value of the
immovable is more than the mortgage value that restricts it. The request
consists of a request for determination of the value of the immovable property
subject to the request, stating that the immovable property belonging to the
company’s partners will be put as capital in kind to the company in accordance
with the Articles 329 et seq. of the TCC, and based on the title deed records
subpoenaed and the expert report received; the report of the expert committee
dated 06.11.2019 regarding the fair value of the immovable property, including
the land, subject to the request ..., is of the nature specified under the Articles
329 et seq. of the TCC. It is understood that the value determination was made
according to the qualitative evaluation criteria specified under the Article
343 of the TCC, and the approval of the said report was deemed appropriate, and
the judgment was established as follows", and the judgment was established
as follows: "With the acceptance of the request, the report dated
07.11.2019 prepared by the experts...to be approved in accordance with the Article
343 of the TCC." In the Expert Panel Report dated 07.11.2019; it is
stated as follows: "As a result of the examination and evaluation made,
the fair value of the immovable subject to the lawsuit...including the land may
be TRY 62.400.000- (sixty-two million four hundred thousand TL), and from the
determined fair value of TRY 62.400.000,00-, the mortgage amount of TRY 3.750.000,00
is deducted from the determined fair value of TRY 62.400.000,00, the amount
that should be registered as capital in kind is TRY 58.650.000,00, and it is
concluded that it can be put as capital in kind... according to the share
status."
Consequently, in
the wording and spirit of the law, in particular and for example, in cases
where the real value of the immovable property to be brought as capital is more
than the value of the mortgage or any other imposition restricting it, it
should be allowed to be accepted as capital in kind. [6] Likewise and for
example; if the immovable is put up for sale through execution, the possibility
of the immovable being sold at a price below its actual value should be taken
into consideration by the experts, and calculations should be made accordingly.
This valuation procedure, which includes set-off within its structure, can be
applied to all kinds of concrete cases and will eliminate the problems in
practice and ensure legal security by protecting the mutual interests of the
parties.
5. A Brief
Evaluation Regarding the Explicit Provision of the Turkish Commercial Code Nr.
6102 on Prohibition of Bringing Immovables with Limited Real Rights, Liens,
Encumbrances, Measures, etc. as Capital in Kind to Joint Stock Companies
First and
foremost, pursuant to the Article 1 of the Turkish Civil Code Nr. 4721; "The
law shall apply to all matters to which it deals in letter and spirit."
Therefore, when we look at the opposite meaning of the Art. 342 of the TCC Nr.
6102, a serious limitation emerges, and we are of the opinion that this verbal
meaning, which is incompatible with the spirit of the law and which is put
forward only by literal interpretation, cannot be accepted.
Article 6102 of
TCC Nr. 6102 stipulates that assets that do not have any limited real rights,
injunctions and attachments may be brought to capital companies as capital in
kind. The concerns that constitute the reason for this provision and/or the
opinion that has found its supporters in the doctrine remain hypothetical and
the systematic and discipline on which the opinion is based does not rest on a
logical ground. Therefore, this strict restriction, which is based only on the
wording of the provision, causes problems in practice and the provision needs
to be evaluated in its current form.
The fact that
the capital, which provides the main source of financing of the company, is the
only guarantee of the company's creditors and therefore the principle of
protection of creditors should be observed is undoubtedly an important issue
that we agree with. However, as mentioned above, the literal interpretation
based on the wording of the provision is extremely strict and contains
loopholes. This is because there is no regulation on the type, qualities,
quantities, etc. of the impositions and/or impositions on the immovable
property in the continuation of the wording of the law, and the relevant issues
should be regulated. Not every imposition listed under the Art. 342 of the TCC
will have the same effect in terms of changing the value of the capital in
kind. In this case, each concrete case should be evaluated separately and
within its own structure. It is obvious that it is not possible for each of the
impositions listed as "limited real rights, attachment and
injunction" to have the same result in terms of the adequacy of the
capital in kind, both in comparison to each other and in terms of the sub-types
of these impositions. [7]
In addition,
the former Law Nr. 6762 (eTCC) did not contain a provision containing the
aforementioned restriction. Although, over time, the aforementioned
restrictions have been expanded by disregarding some other principles and
principles within the scope of the principle of protection of creditors and the
concern that the company's capital may remain uncovered, the relevant
regulation, as it stands, is not capable of providing definitive solutions to
existing and potential problems. Likewise, there is no equivalent to the
regulation regarding the said restrictions in German Law.
As a result,
the aforementioned provision, which contains restrictions intended to be
preventive and remedial, will continue to contain potential problems if it is
not developed and elaborated.
6. Do the
Valued Immovables Committed as Capital and Imposed with Encumbrances Constitute
a Registration Obstacle?
As we have
explained above, the value of the assets undertaken to be subscribed as capital
must be determined by an expert, this value must be written under the articles
of association, signed and notarized, and the annotation must be realized by
applying to the registry office.
At this point,
the legislator has stipulated that the matters described in the Article 339/2-e
of the TCC must be included under the articles of association. In this regard,
we will make explanations and evaluations within the scope of the requirement
to include the value of the assets to be contributed as capital in kind under the
articles of association of the company, and then we will address the
application to the registry office and the requirement for the annotation.
Following the commitment to bring the rights in kind as capital to the joint
stock company, the relevant appraised assets must be registered with the land
registry in order for the company to be able to dispose of them.
At this point,
the text of the TCC is silent as to what should be done in practice in the
event that the matters sought by the legislator under the Art. 339/2-e are not
included under the articles of association of the company or are not duly
signed. In this case, if we go to the Article 32 of the TCC, we will come
across the provision stating that "In the registration of legal
entities, it shall be examined whether the articles of association of the
company are not contrary to the mandatory provisions and whether the said
agreement contains the provisions that the law stipulates as mandatory."
Based on this provision, it can be said that in case of deficiencies or
irregularities under the articles of association, the trade registry director
will refrain from registration of the partnership. [8]
Likewise, the justification
of the Article 339 of the TCC reads as follows: "If the mandatory
content is not complied with, the registry director shall reject the articles
of association for completion or correction." As can be seen, the
trade registry director has the authority to reject the registration request.
Therefore,
without in any way implying an acceptance by us, based solely on the wording of
the law, it may be concluded that the director of the trade registry may
refrain from registration of immovables with impositions on them. When we turn
to the actual practice of the matter and look at the practice, the immovables
that are intended to be committed as a basis for capital in kind are valued by
the experts appointed by the commercial court of first instance upon application
of the relevant parties. And this value is written under the articles of
association. However, problems arise during application to the registry
office for registration in order for the company to be able to dispose of them.
This is because, as an inevitable consequence of the literal interpretations
under the law, the registry director may reject such registration requests
based only on formal examinations. In addition, in current practice, the
registry directorate may reject the registration request even for a land over
which a high-voltage line passes, despite the fact that it does not prejudice
the principle of supply of capital in terms of value. This situation shows that
the current applicable regulations are not even based on the hypothetical
concerns in question, but on a simplistic perspective. In this respect, there
are solutions in practice to preserve the value of a piece of land and there is
no danger that this land will leave the capital unpaid. Nevertheless, since
the legislator has not put forward a fair legal regulation in such a way that
each concrete case can be evaluated on its own merits, unfair and unfounded
enforcement decisions are signed.
Despite the
fact that the relevant procedures are functioning properly until the
registration stage, the obstacle of the trade registry director that arises at
the registration stage clearly demonstrates our rightness in the matters we
have endeavored to explain throughout our study. In the face of the clear
provision stating that "The law shall be applied to all matters to which
it refers in letter and spirit", we cannot understand the fact that the
relevant regulation is left to the will of the trade registry director, rather
than the legislator. In addition, it is not correct to attribute an effect
regarding the commitment phase to a rule regarding the savings phase.
Consequently
and explicitly, the current applicable regulations on the possibility of
placing immovable properties as capital in kind in joint stock companies are still
in existence as a hasty arrangement by creating inevitable deficiencies in line
with purely literal interpretations and leaving the continuation processes to a
formal examination to be carried out by the trade registry directorate. As such, it is essential for the legislator
to put forward a will that includes detailed examination and regulation.
Although we
have introduced the subject with information and evaluations on the fact that
the regulations on the registration process cause problems in practice, we feel
the need to emphasize our opinion that in depth regulations to be made by
the legislator are essential, rather than formal examinations and regulations,
because these purely literal and formal regulations cause many grievances in
practice and cast a shadow on the security of law. As we have repeatedly
stated, the legislator has followed an extremely simplistic attitude and left
the matter entirely to the methods of interpretation. As a matter of fact, if
we look at the existing and potential problems in practice, the law is put into
practice by interpreting it in an extremely narrow manner, and this situation
fails to protect the balance of interests between the basic principles of law.
In the face of
the text of the law, which we find to be incomplete, groundless and
contradictory, the solution method of determining the net value of the real to
be added as capital through the expert valuation method is of a nature to
eliminate many problems. We are of the opinion that the fact that the law
contains gaps and erroneous regulations regarding the issue that constitutes
the subject of our article is not open to interpretation and is extremely
clear. Reiterating our opinion that it is essential for the legislator to
make a detailed regulation; if we support all the contradictions that can be
detected even in the way we have tried to briefly explain in this article with
a few more examples;
Article 339/1
of the TCC sets out that "A joint stock company is a company whose
capital is definite and divided into shares, and which is liable for its
debts only with its assets."
In this case, a
possible interpretation that immovable properties with impositions on them will
eliminate the "certainty", which is a characteristic of the main
capital of a joint stock company, will be unacceptable and will be in need of
explanation. As follows:
Determination
of the share capital means that the amount of the share capital is a value that
is determined and expressed in money and that this amount is specified under the
articles of association of the company.
The certainty
of the share capital, the fact that the amount of the share capital is
predetermined and expressed in money, and that this amount is specified under the
articles of association of the company and in places such as the trade
registry, which are accessible to the relevant parties, eliminates the concern
that the share capital will remain uncovered. Likewise, the fact that this
amount is determined, informed and transferred in a manner accessible to the
relevant parties, such as the trade registry, protects the principle of
protection of creditors and the principle of supply of capital by protecting
the determination of the capital.
Therefore, the
value of the immovable property with impositions on it, which is intended to be
brought to the joint stock company as the main capital, contradicts with the
definite nature of the capital, but it is a situation that may occur as a
result of the inability to assign a monetary value to it. Otherwise, an
immovable property with impositions on it has nothing to do with the definite
nature of the capital. In this case, the applicable regulations regarding the
immovable property with impositions on it, which was put forward by the
legislator within the framework of the existing concerns, are also erroneous
for this reason, because the aforementioned concerns have no basis and
justification. As we have repeatedly explained above, experts may, of course,
make valuations regarding these immovable properties. In current practice,
reports are prepared by experts on the immovables with impositions thereon, and
this report prepared by the experts appointed by the competent court should be
deemed necessary and sufficient at the registration stage.
Therefore, we
are of the opinion that the approval to be given for registration of a value,
which can be monetized by experts, in the registry in a manner accessible to
the relevant parties is extremely reasonable. As such, we are of the opinion
that the immovable properties that are committed to be put as capital and that
have been appraised with impositions on them will not constitute an obstacle to
registration.
As a result,
while it is quite clear that existence of certain impositions on immovables
does not prevent them from being put as capital in kind, since the value
decreases caused by these impositions can be determined as a result of the
valuation to be made by the experts and the remaining net value of the
immovable can be taken as the basis for the capital commitment after deducting
the determined value decreases from the base value, in other words, there is no
hesitation about the determinability of the capital, we cannot understand the
basis on which the legislator has imposed the restrictions subject to our
article. In the final analysis, it is unacceptable that these interpretations
and/or formal regulations introduced in line with the applicable regulations,
the basis of which is erroneous, create an obstacle to registration, and it is
essential for the legislator to put forward a will that includes a detailed
regulation.
7. Conclusion
Considering our
current explanations, it would not be wrong to say that the legislator has
taken a simplistic approach to this issue, which is extremely disruptive to
unity in practice. This is because the contradictions and gaps under the
applicable regulations can be resolved through the expert valuation procedure
and detailed studies on the relevant regulations.
As a result, the
view that the existence of certain impositions such as liens, pledges,
easements, encumbrances, etc. on immovable properties does not prevent them
from being put as capital in kind, since the value decreases caused by these impositions
can be determined as a result of the valuation to be made by the experts, and
that the remaining net value of the immovable can be taken as the basis for the
capital commitment after deducting the value decreases from the base value, and
that the valuated immovables with impositions on them will not constitute an
obstacle to registration is more in line with the interests to be protected,
equity and today's economic conditions both in terms of the current conjuncture
of our country and in terms of legal interpretation security.
Att. Öykü Yaman
References:
1.
Paslı, AO Hükümlerinin Tanıtılması II, p. 182.
2.
Kendigelen, İlk Tespitler, p. 231.
3.
Çonkar, H.: Anonim Ortaklıkta Ayni Sermaye, Istanbul 2016.
4.
Tekinalp (Poroy/Çamoğlu), Ortaklıklar Hukuku II, Istanbul 2017, p. 241, p.
1382c.
5.
Bahtiyar, Anonim ve Limited Şirketlere Konulacak Ayni Sermaye Unsurları
Üzerinde Sınırlı Ayni Hak Bulunmaması Şartına İlişkin Bazı Değerlendirmeler
6. Oğuzman,
M. K./ Barlas, N.: Medeni Hukuk, 25th Ed., Istanbul 2019.
7.
Paslı, AO Hükümlerinin Tanıtılması III, p. 198 et seq.; Akdağ Güney, ibid. p.
100.
8.
Tekinalp, Sermaye Ortaklıkları,
