33 / 521
work for
2
. However, at the same time they protect the rights and bene-
fits of the company that they represent, and in most instances they fol-
low their instructions. It is important to determine the liability of the
representative of the legal entity board member in these situations.
According to Tekinalp, the representative is the reflection of the legal
entity in the board of directors and doesn’t have an opinion or voting
rights. Hence, representative opines and votes on behalf of the repre-
sented legal entity
3
. The losses and profits of the board belong to the
represented legal entity and not the representative. In a similar manner,
the preamble of the TCC expresses that the aim of the law in deter-
mining the legal entity as the board member and not the representative
is to prevent big companies with ample resources from “hiding behind
their representatives”. These statements within the preamble may indi-
cate the legislator’s intention to place liability with the represented
legal entity. Correspondingly, it is possible to say that the registration
of the representative with the trade registry and the publication within
the trade registry gazette and the web site of the company aims to pro-
vide public disclosure of the relationship between the representative
and legal entity to reinforce the accountability of the legal entity’s
board member. If this view is adopted the legal entity is the liable party,
as it is the board of directors member, whereas under the old Turkish
Commercial Code, the representative was the registered and published
board member, and therefore liable in certain cases.
However it must be maintained that the representation/proxy rela-
tionship between the representative and the legal entity is independent
from all of this. The legal entity may seek recourse from its represen-
tative on the grounds of their contractual relationship.
On the other hand, the TPC and the PCPAC both consider the
board members responsible as a result of their title as the legal repre-
sentatives of the taxpayer company. Therefore, the liability is placed on
the legal entity board member. However, as mentioned above, tax
authorities may pursue the representative for tax debts, because
although the taxpayer is the primary person responsible, tax debts
which cannot be collected from the taxpayer company or from the
COMMERCIAL LAW
17
2
Bumin DOĞRUSÖZ
– Anonim Şirketlerde Temsilci Yönetim Kurulu Üyelerinin Sorumluluğu.
3
TEKİNALP
- Sermaye ortaklıkları p.195 et seq. N.12-14.