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to eliminate the good faith of third persons. Pursuant to this provision, the
dispositions of the articles of association will benefit from the positive
effect of registration, only for the subjects enumerated in the relevant
article.
Possibility to File an Action for Annulment
In company law, the principle that the registration fills every legal
deficiency is applied. According to this principle, the company cannot be
declared null and void after the incorporation. This principle is crucial for
the protection of the transaction security. However, actions for annulment
are more convenient for the balance of interests. TCC does not provide
any provision concerning the action of annulment. This legal gap has
arisen from the abrogation of the action for annulment regulated under
the Article 299/f of the TCC by the Statutory Decree dated June 24, 1995
and numbered KHK/559.
Article 353 of the New TCC has filled in this legal gap by regulating
the possibility to file an action for annulment. Pursuant to this article,
concerning the incorporation and capital increase, in the presence of
important reasons, an action of annulment can be filed. However, the
condition is that the interests of the creditors, shareholders or the public
are significantly jeopardized or violated by the infringement of legal
provisions concerning the incorporation of the company.
Claimants of the action for annulment are enumerated based on the
numerus clausus
principle. Accordingly, upon demand of the Board of
Directors, the creditor in question or of the shareholder, the commercial
court situated at the location of the company’s registered office can
decide on the annulment of the company. The court may grant a delay
for the correction of deficiencies and illegalities, instead of an annulment
decision. The annulment should be used as the last resort.
Conclusion
Provisions of the New TCC concerning the incorporation of the
joint stock companies should be considered within the scope of filling
the deficiencies of the TCC, implementation of necessary reforms and
simplification of proceedings. Provisions concerning the corporation