88 / 516
foreseeing the sanction for violation. Pursuant to amended article 358,
the shareholders of the company may not be indebted to the company
if (a) the shareholder does not fulfill its due obligation arising from
capital subscription and (b) the company’s profit, including the free
reserves is not sufficient to recoup the losses from previous years. The
article of the Application Act governing the three year adaptation peri-
od is abrogated by the Amendment Act.
The justification for this amendment introduced by the
Amendment Act states that the prohibition is not completely lifted.
From now on, shareholders will be entitled to refer to the property of
the company in the presence of urgent funding necessities.
The Amendment Act also amends the provision foreseeing the
sanction in the event the prohibition on granting loans to shareholders
by the company is violated. Accordingly, shareholders assuming debt
in violation of this prohibition shall not be faced with any sanctions.
Persons lending the property of the company to the shareholders in
violation of this agreement shall be faced with judiciary monetary fine
of at least three hundred days.
Even though the justification of the provision of the Amendment
Act limiting the scope of prohibition states that the possibility provid-
ed thereunder shall be used only for the immediate and urgent funding
needs of the shareholders and executive officers, we believe that the
provision exceeds this purpose. Pursuant to the relevant article, share-
holders who pay all their due capital subscription debts may be in a
state of being indebted to companies whose income covers the loss
from previous years, regardless of whether there is an urgent need or
not. Notwithstanding however, the justification of the Amendment Act
also states that shareholders and executive officers, using company
property for long periods of time in large amounts may be deemed to
have “emptied the company” which may constitute the crimes of abuse
of confidence or fraudulent bankruptcy under the Turkish Penal Code.
Prohibition on Company Loans to Members of the Board of
Directors
Article 395 of the New TCC which governs the prohibition to enter
into transaction with the company foresees the prohibition on loans to
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NEWSLETTER 2012