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approval for companies whose establishment requires the ministry’s
approval, registration and announcement. The procedure established
takes no longer than that under the aTCC. Therefore it may be argued
that a provision governing the pre-company was not necessary.
Where it is accepted that the pre-company is an ordinary partnership,
the necessity of its existence is debatable. Nevertheless, Tekinalp is of
the opinion that the pre-company is beneficial because it clarifies the
point at which a company is established; and that although an ordinary
partnership (a “company”) is established, disputes between the founders
will be resolved pursuant to the articles of association, and lacking a
provision thereunder, under the statutory provisions governing ordinary
partnerships; that once the legal entity is established the pre-company
will be deemed liquidated and that the scope of the phrase “those acting
on behalf of the company prior to registration” is now clarified by law
14
.
Conclusion
A joint stock company is established through the notarization of the
founders’ signatures on the articles of association, in which the founders
declare their intention to establish said company. Thus, the TCC regulates
the incorporation of the company and the forming of the legal entity
through registration as two separate phases. From now on, the existence
of a pre-company prior to registration will be acknowledged. Nonetheless
the legal regime applicable to such pre-company is highly disputed.
The provision governing pre-companies may be applicable to other
companies regulated under the TCC by analogy; however there is debate
as to whether or not unlimited liability companies may also benefit from
this provision.
14
Tekinalp
, Ortaklıklar, par. 10-28.