48 / 516
According to article 559 of NTCC, the liability of the board mem-
bers, auditors regarding the incorporation or capital increases shall not
be waived or released within four years upon the relevant registration.
The claim of indemnification is subject to a statute of limitation of two
years as of the date on which the loss and the liable person are learned
and at most five years as of the date on which the action lead to loss is
occurred. Should there be a longer statute of limitation under Turkish
Penal Code for the same action, this statute of limitation shall apply the
civil legal actions as well. The legal action shall be filed before the
court where the company headquarters is registered.
b. Penal Liability Provisions
According to article 562 of the NTCC regarding the penal liabili-
ty and sanctions, the above discrepancies set forth under article 549
regarding the incorporation, capital increase or decrease, merger, de-
merger, change of type or issuance of securities, the people who pre-
pared fictional documents and who make false and misleading records
shall be subject to a penalty of 1-3 years imprisonment. In addition, as
per article 550, the people, who cause wrong and misleading impres-
sion regarding the share capital, shall be subject to a penalty of 3
months – 2 years imprisonment or judicial fine.
Conclusion
In the light of the above, the increase of the share capital of a com-
pany by utilizing internal courses which are recorded as re-assessment
funds upon a re-assessment of the fixed assets shall not be legally pos-
sible according to the reiterated article 298 of TPL which was amend-
ed with the law nr. 5024. Therefore, a capital increase conducted con-
trary to the relevant provisions of law may lead civil and penal liabili-
ty of the board members, auditors or any related people.
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NEWSLETTER 2012