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registration serves to inform third parties. Therefore, a company which
did not register and announce the new members of the board of directors
may be bound by the transactions made by the former member with a
third person, unless it is proved that the third person knew of the changes.
However, the Opinion of the Ministry indicates that members
appointed to the board of directors pursuant to Article 363 must be
registered in order to participate in new member appointments and grants
a constitutive nature to the registration. This attitude is not in compliance
with the law and the doctrinal opinions referred above which defends that
the registration is not constitutive.
Another issue is whether amember of the board of directors, appointed
pursuant to Article 363 of the TCC and approved by the general assembly,
but not yet registered, could participate in resolutions with respect to new
member appointments as per Article 363 of the TCC. A member approved
by the general assembly must be considered as a member appointed by
the general assembly. Although the Opinion of the Ministry is not clear in
that regard, it would be consistent with its opinion to require registration
in such a case, too.
Conclusion
As seen, the Opinion of the Ministry, which requires registration for
participation in resolutions for the appointment of members to the board
pursuant to Article 363 of the TCC, is not in compliance with the law and
the doctrine referred above. In any case, Article 363 of the TCC should
not be used for the purpose of disregarding the authority of the general
assembly to appoint members to the board of directors.