87 / 473
NEWSLETTER 2013
74
of directors pursuant to the Article 363 of the TCC shall be examined and
the Opinion of the Ministry shall be evaluated.
The Opinion of the Ministry
In the Opinion of the Ministry, articles 363 and 408 of the TCC are
evaluated as follows:
“
…it is understood that consecutive resolutions for the appointment
of members replacing the resigning members of the board of directors are
adopted at different times on the same day that members have resigned.
It is also understood that newly appointed members participate in the
resolution regarding the appointment of other members prior to the
registration of the resolution by which they were appointed.
In this respect, it is not appropriate to replace all members of
the board of directors pursuant to article 363 of the TCC since the
appointment of members to the board of directors is one of the non-
transferrable authorities of general assembly; new members may be
appointed pursuant to this article only in the event the quorum is present,
despite the vacancies, and the new members may participate in the new
resolutions following their registration.”
The Opinion of the Ministry refers to a case in which the board of
directors of a joint-stock company adopted sequential resolutions on the
same day at different times. The new member appointed pursuant to the
Article 363 in one of these resolutions participated in the appointment
of another member without being approved by the general assembly and
without being registered.
The Opinion of the Ministry has two outcomes: (i) changing all
members of the board of directors as per Article 363 of the TCC is not
possible by virtue of Article 408 of the TCC; (ii) the members appointed
pursuant to Article 363 of the TCC may participate only in the new
resolutions following their registration. However, it is not clear in the
Opinion of the Ministry whether the phrase “new resolutions” are relevant
only to the resolutions with respect to Article 363 of the TCC or to all
resolutions to be adopted by the board of directors.
It may be argued that Article 408 of the TCC should not be rendered
ineffective by virtue of Article 363 of the TCC. However, the Opinion of