ERDEM-NEWSLETTER-2018-metin

23 COMMERCIAL LAW the TCC is a newly introduced provision, the main rule existed in the Previous TCC. The prohibition of subscription for its own shares is a requisite of the principle of actual payment of capital and is an absolute prohi- bition 3 . A situation to the contrary would mean investing the assets owned by the company again in its assets, as capital; in other words, using the same capital twice 4 , which would also violate the principle of equal treatment through the establishment of a company without capital, or allocation of the risk in the amount of the increased capital to the company, by taking the risk from all or certain of the sharehold- ers 5 . Scope and Field of Application of the Prohibition As per the preamble of the said Article, the provision aims to include all circumstances of original acquisition of shares, such as subscription for the shares to be issued at the incorporation and capi- tal increase, subscription through taking over the preemptive right in principal and registered capital systems, and the exercise of the rights of exchange and purchase in conditional capital increases 6 . On the other hand, in the event of a capital increase through internal resources (by way of conversion into capital of the substitutes, reassessment fund, immovables or subsidiary sales earnings, or the profits decided to be distributed), it is argued that the prohibition of subscription for its own shares is not applicable, as it is not possible to violate the principles of actual payment and protection of capital, since there is no new external contribution to increase the company’s assets through this type of capital increase 7 . 3 Preamble of Article 388 of the TCC. 4 Okutan Nilsson, Gül : Türk Ticaret Kanunu Tasarısı’na Göre Şirketler Topluluğu Hukuku, İstanbul 2009, p. 209; Çapa, Mehmet Sadık: Anonim ve Limited Şirketlerin Kendi Paylarını İktisap Etmesi, İstanbul 2013, p. 138. 5 Pulaşlı, Hasan : 6102 Sayılı Türk Ticaret Kanuna Göre Şirketler Hukuku Şerhi, Cilt II, Ankara 2011, p. 1243; Çapa, p. 139. 6 Preamble of Article 388 of the TCC. 7 Pulaşlı , p. 1243 and the authors mentioned therein.