NEWSLETTER-2020-metin

19 COMMERCIAL LAW eral assembly meeting cannot benefit from the right to dividends, 4 or a board of directors’ resolution not allowing shareholders to exercise their pre-emptive rights for newly issued shares due to their negative votes for the capital increase at the general assembly meeting, or re- questing a lesser ratio of the balance from the founding shareholders when requesting the remaining capital contribution obligations 5 , con- stitute violation of the principle of equal treatment. Resolutions that do not comply with the Basic Structure of Joint Stock Company or do not maintain the Principle of Protection of Capital The preamble of the Article explains the resolutions in contradic- tion with the structure of a joint stock company as follows, based on the Swiss doctrine: 6 Board of directors’ resolutions setting general rules of law that are contrary to mandatory provisions are invalid. For example, a board of directors’ resolution imposing an obligation for additional payment to all shareholders to cover balance sheet deficits is in contradiction with the principle of limited liability of sharehold- ers, which stands as one of the components of the structure of a joint stock company (Article 421/2-a of the TCC is reserved). The preamble of the Article offers a more concrete and compre- hensive explanation as follows, with reference to the definition and organizational structure of a joint stock company: 7 “ Resolutions that are contrary to the definition of joint stock company, shareholders’ rights and obliga - tions, and the organizational structure of the company are in breach of the main structure. The main structure corresponds to the essential elements that sustain a joint stock company. The “obligation for additional payment” 4 Pekdinçer, Tamer : “Anonim Şirketlerde YönetimKurulu Kararlarının Geçerliliği (Özellikle Batıl Yönetim Kurulu Kararları) (TTK m. 391)” , Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi C. 18, No. 2, Y. 2012, https://der- gipark.org.tr/en/download/article-file/802571 , s. 677 (Access date: 10.12.2020). 5 Pulaşlı, Hasan : Şirketler Hukuku Genel Esaslar, Updated 2nd ed. Ankara 2013, p. 418. 6 The Preamble of Article 391 of the TCC. 7 The Preamble of Article 391 of the TCC.