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COMMERC I AL LAW
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one year will be extended for 3 years if new members are
not elected (TCC art. 314/1), and this situation means
circumventing the provisions for agency and contradict
the purpose of art. 397/2 of the Code of Obligations.
In case a competence is granted for a definite term or
for 3 months with a temporary registry pursuant to art.
34/4 of TCC, if the new members are not elected by the
end of this term, the result may not change and the same
gap will continue. To grant a limited competence would
not be valid according to art. 321/1 and 321/2 and will
have also the abovementioned disadvantages. To accept
that the former members will continue their duties until
the new members are elected gives former members the
opportunity to delay the election of board members until
the last possible moment. Moreover, these members will
not act prudently in conducting the affairs of company
since they are acting temporarily.
In this case, it is more acceptable to decide that the
company no longer has its organ pursuant to art. 435/1 of
TCC. Despite the fact that there is a risk that the company
will be terminated because the election of new members is
not effectuated until the time granted by the judge for the
election of members, this disadvantage may be remedied
by the court’s granting a long and appropriate term..”
However, in general, the decisions of the Court of Appeals accept that
as the TCC does not have any provision stipulating that the duties of board
members are terminated automatically at the end of their terms, the former
members of board will continue their duties until the new ones are elected.
It is not possible to mention a lack of organ in the company due to the
expiration of the term of office of board members.
To present the opinion of the Court of Appeals, the decision of the 11
th
Chamber numbered 2009/5463-2009/6666 and dated 01.06.2009 may be
given as an example:
“Concerning joint stock companies, there is no provision
stipulating that the duties of boardmembers are terminated
automatically at the end of their terms and because of