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that this Opinion of the Ministry of Customs and Trade, General Directorate
of Domestic Trade contradicts the spirit and wording of the Law.
Indeed, if the wording of the provision regarding corporate
representation is analyzed, it is not possible to conclude that the
appointment of a corporate representative is subject to the appointment
of a body representative. The regulation of such an appointment in a
separate article supports this opinion. Moreover, the paragraph starts with
the expression “
In addition
”; thus it strengthens the thesis that appointing
a new independent representative in addition to the representatives in
the first paragraph is provided for in the article. Also, when the wording
of the article is analyzed, with a focus on expressions such as
“calls”,
“requested”
and
“publishes”,
which explain the duties of the board of
directors, it is concluded that the board of directors does not have any
discretion regarding this issue. The doctrine states that
“…
all joint stock
companies, without any difference, will be obliged to apply the provision
with regards to the corporate representative before a certain period of
their general assembly meetings.
”
4
.
Moreover, explanations in the justification that underpins Art. 428
TCC stipulate that the regulation regarding corporate representation is
independent from the first paragraph. For example: “
It is possible for the
company to not stipulate a body representative in order for the company
(management) to be released from the obligation to recommend an
independent representative. However, even if the management applies this
method, corporate representatives in the third paragraph of the article
may come up and the obligation of proclamation may still occur.”
Explanation of the justification of Art. 428 stipulates the consequences
of non-compliance with the appointment procedure for a corporate
representative as follows: “
The non-compliance with this proceeding is
grounds for annulment of the general assembly resolutions. This conclusion
is derived from Article 445.”
Art. 445 TCC, cited as the source from which
the sanction of annulment is derived, is parallel toArt. 381 of the former TCC
No. 6762 regarding reasons for annulment. However, Art. 446 TCC, which
regulates the persons that may file a suit, establishes different requirements
4
Kendigelen
, p. 329.