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board members and their relatives specified in the article, who are
shareholders in the company. Furthermore, reference to unlimited
companies and capital companies, to which the board members and
their relatives are members, has been completely abrogated. Therefore,
only the board members and their relatives who are not shareholders in
the company are prohibited from borrowing the company and the com-
pany may not provide guarantee, surety ship or other collateral, assume
obligations or debts for such persons.
The Amendment Act does not amend the provision on granting the
creditors of the company the authority to pursue persons indebted to
the company in violation of the prohibition. Nonetheless, the provision
of the New TCC, granting authority to pursue caused criticism, since
the Enforcement and Bankruptcy Code already grants the creditors to
claim from company debtors to pay their debts within the scope of exe-
cution up to the receivable amount. The New TCC only reaffirms this
possibility and, being a statutory provision entering into force at a later
date; it may even result in the provision of the Enforcement and
Bankruptcy Code no longer being applicable.
The sanction of judicial monetary fine of at least three hundred
days for persons violating this article is not amended either. It is appar-
ent that, board members and their relatives who are shareholders in the
company may be indebted to the company in compliance with article
358 analyzed hereinabove, otherwise they will be subject to the sanc-
tions foreseen for the violation of the article.
Conclusion
The New TCC, as enacted, includes provisions, which prohibit
companies to grant any personal loan to the shareholders, board mem-
bers and relatives of board members as well as unlimited and capital
companies in which the board members and their relatives are partners.
Persons violating such prohibitions shall be faced with judicial mone-
tary fines of at least three hundred days. These provisions were severe-
ly criticized due to not allowing indebtedness even in the presence of
urgent needs. The Amendment Act narrows the scope of this prohibi-
tion to a great extent.
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NEWSLETTER 2012