30 NEWSLETTER 2021 Newsletter discusses the cases in which the resolutions of the general assembly shall be deemed null and void pursuant to Article 447 and the following provisions, as well as procedural issues such as who is entitled to request the determination of nullity, the procedure of making such a request, procedures publication, depositing security, conditions for granting a stay of execution of the decision, and the effect of the resolution. Reasons for Nullity Under Article 447 of the TCC, a general assembly resolution shall be deemed null and void, especially, if it (i) eliminates or restricts shareholder rightssuch as the right to attend the general assembly, to have certain number of votes, to file a lawsuit and other indispensable rights arising from the law, (ii) restricts shareholder rights such as information, inspection and audit rights beyond the limits allowed by the law, or (iii) deteriorates the fundamental structure of the joint stock company or violates the principle of protection of capital. The wording of the Article where the expression “especially” is used, shows that the reasons for nullity are not exhaustively listed, and there may be other null and void resolutions not foreseen under the Article. The preamble of the Article provides broad explanations on why null and void resolutions are not exhaustively listed, and on the determination of null and void resolutions. The relevant section is quoted directly to better convey the purpose of the legislature4: “It would not be accurate if the draft law exhaustively (numerus clausus) determined null and void resolutions of the general assembly. If that had been done, so many resolutions that could be considered null and void would have fallen out of the scope of the provision. On the other hand, it is impossible to determine or define all of the nullity situations and reasons in the law. Therefore, it has been evaluated that distinguishing the null and void resolutions into two categories, leaving the reasons for null and void resolutions in terms of form to the precedents and doctrine, and precisely pointing out the resolutions that are 4 The preamble of Article 447 of the TCC.
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