ERDEM-NEWSLETTER-2018-metin

26 NEWSLETTER 2018 apart from those whom have evidenced that they bear no fault, are not relieved of their liability. The liability for unpaid prices is several 12 . The preamble of the provision states that the Article is based on the assumption that the subscription was made by the founders at the incorporation and by the board of directors in capital increases, and explains the structure of the Article, based on the presumption of fault, as follows: “ If the founders or the members of the board of directors are not at fault , the subscription not only has no consequences (as it is in - valid), but it also is not replaced by another subscription through an assumption. If the founders or the members of the board of directors are at fault, the invalid subscription is replaced by their subscription through a statutory assumption. In order to eliminate any ambiguities, fault is emphasized. ” 13 In accordance with Article 388/4 of the TCC, the third paragraph that regulates the consequences of violation of the prohibition shall also apply by way of analogy to the subsidiaries subscribing for the shares of the parent company, and such shares shall be deemed to have been subscribed for by the members of the board of directors of the subsidiary. The members are liable for the share prices. This paragraph emphasizes that the liable parties are the members of the board of directors of the subsidiary, and the liability of the founders of the subsidiary is not explicitly regulated as it is a very exceptional case; however, such wording that is preferred in the Article does not prevent assigning the liability of the founders of the subsidiary 14 . Conclusion As a requirement of the principle of actual payment of capital, companies are prohibited from subscribing for their own shares under the TCC. Even though the expression of “prohibition of subscription for its own shares” was first used in the TCC, the term “free from any collusion” under Article 285/1 of the Previous TCC also included 12 Preamble of Article 388 of the TCC. 13 Preamble of Article 388 of the TCC. 14 Preamble of Article 388 of the TCC.