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NEWSLETTER 2011
34
Article 412 of the New TCC regulates the procedure of application
to the court with regards to the cases in which the BoD denies the request
of minority shareholders. Unlike the TCC, the New TCC provides that
in case the request is not approved within seven business days, the
shareholders may also apply to the court. In the event that the courts
deem it necessary, a GA meeting shall be held and the court shall appoint
a trustee responsible of the agenda and the convocation.
Exceptions of the Principle of Compliance with the Agenda
As is known, “the principle of compliance with the agenda” is applied
with regards to the subjects that may be discussed and decided in the GA
meetings. According to this principle, the agenda of the GA is determined
prior to the GA meeting, in addition, is clarified in the publications and
letters of invitation. In principle, the subjects that are not included in the
agenda cannot be discussed and decision cannot be taken with respect of
the subjects not listed in agenda.
Under the TCC, some of the minority rights were not properly used
because of the principle of compliance with the agenda. The New TCC
extended the scope of the exceptions of the principle of compliance with
the agenda, and therefore, guaranteed that minority shareholding rights
would be more efficient.
One of the exceptions mentioned above is the fact that the dismissal
of the BoD members is not within the scope of this principle. Pursuant to
Article 364 of the New TCC, the GA may dismiss a BoD member based
on justified reasons, even if this is not in the agenda.
Another exception exists with regards to the requests of appointment
of the special auditor. Pursuant to Article 438 of the New TCC, any
shareholder may request the appointment of a special auditor even if this
subject is not included in the agenda. Whether this request was within the
scope of the principle of compliance with the agenda was a controversial
issue under the TCC. Since this exception was not regulated under legal
provisions, it failed to be applied properly.