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The founders or third persons acting on behalf of the company may also
be held responsible in relation to their actions at this stage. The founders
are responsible for the difference, at the incorporation stage, between
the nominal value of the capital and the total value of the assets of the
company, and from indebting the company prior to its registration to the
registry. Those acting on behalf of the company prior to its registration
are further personally and jointly responsible for realizing transactions in
the name of the company
10
.
Where Swiss law principles are adopted, the pre-company should
be deemed an ordinary partnership and provisions governing ordinary
partnerships should be applicable.
The Necessity for Pre-Companies
A Pre-company is a legal institution adopted from German law.
German law provides detailed provisions governing the phases of
incorporation as a result of which the incorporation process may last for
a period from six months up to a year. Certain transactions are mandatory
and must be completed prior to registration and the formation of the legal
entity, and it is of vital importance that such transactions are realized by
an entity, namely the “pre-company”
11
.
As promulgated by the national assembly, the TCC established a long
incorporation procedure, as it included an audit by a transactional auditor.
The transactional auditor was charged with verifying compliance with
laws, whether the incorporation documentation was complete, accurate
and fit for purpose, and whether the valuations reflected the reality
12
.
Nonetheless, Law No. 6335
13
abrogated the transactional audit system.
Therefore, incorporation procedures entail preparation of the articles
of association and notarization of signatures thereon, the founders’
declaration, payment of the minimum subscription fee, obtaining
10
Kervankıran
, p. 356-362.
11
Kervankıran
, p. 353.
12
Tekinalp
, Ortaklıklar, par. 10-39.
13
The Law Pertaining to the Amendment of the Turkish Code of Obligations and the Law on
the Entry Into Force and Application of the Turkish Code of Obligations was published in the
Official Gazette dated June 30, 2012 and numbered 28339.