405 / 522
nership (
société en commandite
) companies, as well as the share capi-
tal companies. Pursuant to Article 238/2 of the Turkish Commercial
Code, a creditor may initiate a direct bankruptcy case against a gener-
al partnership and its partners if the creditor has initiated an enforce-
ment proceeding with a prior court decision, and the debtor has not
repaid the debt despite the payment order. This provision applies for
the shareholders of imited partnerships, as well. For the share capital
companies, over-indebtedness constitutes a reason for a direct bank-
ruptcy case. The state of over-indebtedness is determined by the
experts appointed by the court.
Procedure
In the presence of the above-stated grounds, the creditors may file
a direct bankruptcy case before the commercial court of first instance
where the debtor is situated, without any need to conduct a prior
enforcement proceeding for the purposes of bankruptcy.
The bankruptcy case is subject to a simple procedure and fixed fee
regardless of the amount of the receivable since the subject of the case
is the bankruptcy of the debtor and not the payment of the debt.
Nonetheless, the creditor shall pay advance costs to be determined by
the court. The court will spend the advance for the liquidation transac-
tions during and after the bankruptcy case.
The claimant shall specify the ground for the direct bankruptcy in
its petition. As the grounds for direct bankruptcy are different from
each other, amendment of this ground shall be subject to the prohibi-
tion of extension of the claims
12
. Claimant shall prove its receivable
and ground for the direct bankruptcy. However, in some cases, defini-
tive evidence is not required and presumptive evidence is deemed suf-
ficient; any type of proof may be submitted to the court.
After receiving the petition, the commercial court announces the
bankruptcy request in the trade registry gazette and in daily newspa-
pers. In accordance with Article 178/2 of the EBL, other creditors may
demand the refusal of the request before the court within fifteen days
as of the date of announcement by claiming that the debtor has arranged
MISCELLANEOUS
389
12
Pekcanıtez/Atalay/ Özkan/ Özekes
, p. 654.