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NEWSLETTER 2013
36
Liability Lawsuit
In General
Art. 193 TCC specifically regulates the liability arising from not
executing restructuring transactions in accordance with the law. Pursuant
to this provision, persons participating in the restructuring transaction in
any way shall be liable to the companies, shareholders and creditors of
the companies involved for the damages they cause due to negligence or
fault.
Parties to the Lawsuit
Contrary to the first two lawsuits I assessed above in relation to
restructuring transactions, not only the shareholders, but also the company
itself or its creditors may initiate a liability lawsuit.
The defendants to this lawsuit are defined with a broad scope in
the TCC. Accordingly, persons who participated in the merger, spin-
off or conversion transactions in any manner may be the defendants to
this lawsuit. In the event of a broad interpretation of this provision, in
addition to the company managers who engaged in the transaction, all
auditors, financial institutions as well as other consultants who engaged
in the transaction may become defendants. Nevertheless, pursuant to
the strict interpretation, which should prevail, the responsibility of the
bodies should be enforced rather than the responsibility of the persons
who provide consultation services under an agreement executed with
the company. Accordingly, the board of directors, managers, liquidation
officers and directors may be held liable and become the defendants to
this lawsuit. I am of the opinion that shareholders who participated in the
general assembly meeting should also be kept out of the scope of this
lawsuit.
Subject Matter of the Lawsuit
The claimants may request compensation for direct damages caused
(due to negligence or fault) by the persons who participated in the
transaction. Nevertheless, the indirect damages suffered by shareholders
are subject to the general liability regime. The company may file a liability