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COMMERCIAL LAW
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by the doctrine, and plays an important role in order to avoid alienation
within the company.
Pursuant to Article 493/3 of the New TCC, in the event that the
transferee does not declare that he purchased the shares on his behalf,
the company may refuse to register the transfer on the share ledger. This
disposition aims to prevent the elimination of share transfer restrictions
with fictitious transactions.
Pursuant to Article 493/4 of the NewTCC, in the event that the transfer
has been realized by means of inheritance, distribution of inheritance,
marital property regime between spouses or enforcement procedures, the
company may dissent the transfer only by offering to purchase the shares
on their actual value. The said disposition is similar to Article 418/4 of
the TCC.
The ownership of the shares concerning the cases in which the
company disapproves the transfer was controversial under the TCC.
There are two theories on this matter: Separation and unification theories.
According to the separation theory, in the event that the company does
not approve the transfer and refuses to register the transfer on the share
ledger, the transfer is null and void with regards to the company; however,
the ownership of the shares passes to the transferee. On the other hand,
according to the unification theory, the ownership of the shares does not
pass to the transferee. Under the TCC, the majority of Turkish doctrine
supported the separation theory. The said theory was subject to criticism
since it created an inconvenient system with regards to the ownership of
the shares. According to this theory, the shareholder which is the legal
owner of the shares was not recognized by the company, or the person
recognized as a shareholder by the company was not the legal owner of
the shares. This unstable legal status was criticized by the doctrine.
Article 494of theNewTCCregulates that in the event that the company
disapproves the transfer of shares, the ownership of the shares and all the
rights related thereto shall be borne on the transferor. Consequently, the
unification theory was adopted, and criticism made by the doctrine was
taken into consideration.