47 / 516
On the other hand, there is a counter-doctrine, which states that
claiming the nullity or voidness of the capital increase is possible
2
. In
such case, these claims have no statute of limitation. The implementa-
tion of such article will be defined by the case law of High Court of
Cassation in the future.
4- Liability and Sanctions
a. Civil Liability Provisions
Articles 549 et seq. of the NTCC set forth the provisions of civil
liability for joint stock companies. As per the general provision under
article 549, in the event that there are false, misleading or missing
information or breach of law in the documents, declaration, undertak-
ings or guaranties regarding the incorporation, capital increase or
decrease, merger, de-merger, change of type or issuance of securities;
the people who prepare those documents or who provide those state-
ments are liable for their fault.
In addition, according to article 550, the people, who lead false and
misleading impression with respect to the share capital, are liable for
their fault and the fictional shares which cause the false impression
shall be undertaken and paid jointly by those who are liable.
Therefore, should there be a capital increase by utilizing the funds
that are not permitted to be added to the share capital, the current board
members who provide the statement and other people who cause the
wrong impression (e.g. the certified accountant who gives a positive
report) will be liable and will be responsible for the losses against the
company, the shareholders and also the company creditors.
As per article 554, the auditors or special auditors are also liable
for their faults during fulfillment of their duties, for the losses against
the company, the shareholders and also the company creditors.
Therefore, should there be a capital increase by utilizing the funds that
are not permitted to be added to the share capital, the current auditors,
who do not point out this discrepancy, will be liable for it.
COMMERCIAL LAW
33
2
Kendigelen, Abuzer
; Türk Ticaret Kanunu Değişiklikler, Yenilikler ve İlk Tespitler, XII Levha,
İstanbul 2011, p. 310, fn. 133.