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ny except for this case. According to the justification of the New TCC
for this article, this article aims to prevent that the shareholders from
misusing the resources of the company for their operations and trans-
actions and making their personal expenses by this means, and from
withdrawing money from the company. The shareholders withdrawing
money from the company was indeed a common practice, which indis-
putably causes many inconveniences.
Pursuant to the amendments made in Article 358 with Law no.
6335, the shareholders may not be indebted towards the company,
unless they perform their due debts resulting from subscription of cap-
ital, and unless the profit of the company together with independent
reserve funds cover the loss of the company for previous years. As is
seen, the conditions of the debt arising in relation to the enterprise of
the shareholder and being subject to the same or similar conditions
with similar operations are abolished. Accordingly, it is sufficient to
fulfill the following conditions of the shareholders performing the
debts resulting from subscription of capital, and the profit together
with the independent reserve funds of the company cover the loss of
the previous year. This provision moderates the prohibition of indebt-
edness towards the company. Given the possibility of distributing
advance dividends and the principle of preservation of capital, the
accuracy of enabling indebtedness to the company without any limita-
tions may be questionable.
Qualification of the Members of the Board of Directors
Article 359 of the New TCC governs the number and qualifications
of the members of the board of directors (“BoD”) in joint stock com-
panies. Pursuant to the relevant article prior to amendments introduced
under Law no. 6335, at least one BoD member entitled to represent the
company was required to be a Turkish citizen and to reside in Turkey.
Additionally, pursuant to third paragraph the said article, at least one
fourth of the BoD members should hold a university degree.
Law no. 6335 abolished the requirement of at least one BoD mem-
ber being a Turkish citizen and residing in Turkey. I find this amend-
ment to Article 359 which contradicted the essence and the possibili-
ties provided by the New TCC to be positive.
COMMERCIAL LAW
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