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COMMERCIAL LAW

of the dependent company, as the dependent company is not entitled to

file a suit pursuant to said article. The preamble of the TCC explains the

reasoning behind this regulation. In accordance with the preamble of the

TCC, the dependent company may not carry out this lawsuit against the

controlling company in good faith since it is affiliated with the controlling

company.

In accordance with said article, the suit may be filed against the

controlling company or its board members who caused the loss. The

controlling company shall be liable for the entire loss. On the other hand,

the lawsuit may also be filed against the board members who caused the

loss. Pursuant to Article 202/1(e), Articles 553, 555 to 557, 560 and 561

shall apply to the action to be taken by shareholders, by analogy. The

aforementioned articles regulate the liability of the board members of a

joint stock company. Accordingly, the board members may only be held

liable where they are at fault. The principles of differentiated succession

shall apply to the liability of the board members.

Release from Liability

Article 202/1(d) TCC stipulates a special condition where the

controlling company and its board members may be released from

liability. Where it is proven that under the same or similar conditions, the

board members of an independent company, who take care of company

interests in good faith and act with the care of a prudent manager, would

also have carried out or refrained from a transaction as a result of which

loss occurs, compensation may not be awarded.

Claims

The plaintiff may demand that the controlling company compensate

for the loss incurred by the dependent company. The amount of the claim

shall be the difference between the current status of the company’s assets

and the would be position of its assets if the act or transaction realized due

to the performance of control had not been realized. The facts which have

a causal relation to the act that gave rise to the loss shall be taken into

account while calculating the loss. The judge has sole discretion while

determining the method of compensation.