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NEWSLETTER 2013

follows: “The company shall be incorporated upon the founders’

declaration stating their will to incorporate a joint stock company in the

articles of association prepared in accordance with the law and in which

the founders unconditionally subscribed to pay the entire capital and on

which their signatures are notarized.” As specified in the justification

of the article (prepared together with the draft TCC), the pre-company

has no legal personality; Article 335/1 clarifies the moment when the

company is incorporated.

Although this provision is among the provisions governing joint

stock companies, there is dispute on its scope. It is disputed whether

this provision is applicable to all capital corporations (i.e. including

limited liability companies) or to all corporations (including unlimited

companies). Therefore, the wording “articles of association” hereinafter

should be construed as articles of incorporation depending on the type of

company to be incorporated.

Legal Characteristics

The justification of the article 355 of the TCC states that pursuant to

the prevailing opinion, the pre-company is not an ordinary partnership

or an association, but a special type of co-ownership. Nonetheless, the

justification states that the qualities and legal attributions of the pre-

company are left to be determined by scholars and jurisprudence.

The legal characteristics of pre-companies are disputed among the

scholars. The justification of 355 of the TCC the article states that the pre-

company is not an ordinary partnership. This shows the desire to adopt the

prevailing opinion under German law

. The prevailing opinion inGermany

is that the pre-company is a

sui generis

communion of persons, which

is materially similar to the corporation to be established, independent

from the founders, which has its own rights and obligations. Nonetheless,

Tekinalp states that the pre-company is an ordinary partnership

. Pursuant

Kervankıran

, p. 366.

Ünal Tekinalp

Yeni Anonim ve Limited Ortaklıklar Hukuku ile Tek Kişi Ortaklığının

Esasları

, Revised and Expanded 2. Edition, Istanbul 2011 (

Tekinalp

, Ortaklıklar), par. 10-

26.