33 COMMERCIAL LAW for example, the provisions regulating the assets that can be invested as capital in kind under Article 342 of the TCC, the payment of the nominal amount of shares subscribed in cash under Article 344 of the TCC, and the measures to be taken in case of loss of capital or bankruptcy under Article 376 of the TCC shall be deemed null and void. Other Reasons As explained above, there may be other reasons as the grounds for nullity are not exhaustively listed under the TCC. Article 447 of the TCC is a special provision compared to Article 27 of the Turkish Code of Obligations numbered 60989 (“TCO”); however, this does not lead to the conclusion that the TCO becomes inapplicable for the nullity of the resolutions of the general assembly10. Hence, resolutions of the general assembly having an impossible subject or violating the mandatory provisions of the law or articles of association, morality, public order, or personal rights, shall be deemed null and void even if they are resolved in compliance with procedural and formal rules. Some examples to the resolutions that are not expressly named under Article 447 but that may be considered null and void include resolutions providing the sale of all assets of the company in order to harm the creditors, and resolutions appointing a mentally ill person as a board member.11 Procedure for Determination of Nullity The explanation of the preamble of the Article is as follows: “A null and void general assembly resolution shall be deemed invalid ex tunc, and shall not be cured afterwards; shall be considered by the courts ex officio; can be claimed as a plea,12 and may also be a subject for a lawsuit for a declaratory judgment, without being subject to any time limit. Furthermore, such resolutions create an important 9 TCO (OG, 04.02.2011, No. 27836) entered into force on 01.07.2012. 10 Çamoğlu (Poroy/Tekinalp), p. 528. For different views as to this matter, see Çamoğlu (Poroy/Tekinalp), p. 529-530. 11 Üçışık/Çelik, p. 348. 12 For the view that nullity is technically an objection, not a plea, see Pulaşlı, p. 370.
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