Limited Liability Company in Historical Perspective
The limited liability company is a kind of corporation that is gained by the German legislator into the universal legal system. Although it was thought that it would be preferred only by small-scale companies due to its similarity to family companies, it was not as expected. It has become a kind of company most preferred by medium-sized corporations over time. In this study, first of all, the concept of the company in Roman Law system with the entity of a limited liability company was scrutinized, and then progress and entity of limited liability company in today’s legal systems have been discussed. At this point, the subject of the study is composed of the process of acceptance of limited liability companies, notably into German legal system and then British, Swiss, American legal systems and legal issues that cause limited liability companies to evolve within the European Union. Since the contents of aforementioned acts do not constitute a matter of study, they are widely out of scope, there only have been addressed within the context of the impact on the progress of the limited liability company.
Tarihsel Perspektifte Limited Şirket Kavramı
Limited şirket, Alman kanun koyucusu tarafından evrensel hukuk sistemine kazandırılan bir şirket türüdür. Özellikle aile şirketlerine olan benzerliği sebebiyle sadece küçük ölçekli işletmeler tarafından tercih edileceği düşünülmüşse de beklenen olmamış, zaman içinde orta ölçekli işletmelerin en çok tercih ettiği şirket türü olmayı başarmıştır. Bu çalışmada ilk olarak Roma Hukukundaki şirket kavramı üzerinde durulmuş, daha sonra limited şirketin günümüz hukuk sistemlerindeki varlığı ve gelişimi incelenmiştir. Bu noktada çalışmanın konusu, limited şirketlerin başta Alman Hukuku olmak üzere, İngiliz, İsviçre, Amerikan hukuklarında kabul edilme süreci ve Avrupa Birliği bünyesinde limited şirketlerin evrilmesine sebebiyet veren hukukî meselelerden oluşmaktadır. Söz konusu kanunların içerikleri çalışmanın konusunu oluşturmadığı için büyük ölçüde kapsam dışı bırakılmış, yalnızca şirket türünün gelişimine etkileri açısından değinilmiştir.
The word “limited” in English, is used to refer to the types of companies that have limited liability of partners in international law systems. This type of company, which is expressed as “limited şirket” in Turkish Law, was born and developed in German law and then started to come into effect universally. In this study, the development process of the limited liability company in various legal systems was examined and the contents of the laws were only mentioned in the points of importance. Although it is the foundation of today’s legal systems, in Roman law, legal entities have emerged with the development of the economy. Especially from the B.C. 2nd century onwards, it is seen that people who do not have family ties have started to establish societas by bringing together all their goods in order to gain a profit. However, this type of company called societas does not have a legal entity and depends on the existence of people who created it. In this respect, it is similar to an ordinary company. Therefore, it is not possible to mention the limited liability company which has a separate legal personality as in today’s legal systems. Before we mention the limited liability companies in European law, it is necessary to examine the developments in German law. Germany established its trade with its colonies on joint stock and personal partnerships. However, when the two types of companies failed to satisfy in terms of needs, the concept of limited liability company was first born in 1892 in Germany. In the middle of the Joint-Stock Companies and partnerships, limited liability company has become popular due to its limited responsibility, as well as its ability to established, organized and managed more easily than other types of companies. For this reason, much change has been made on this type of company to date. The most important of these is MoMiG, which came into force on 01.11.2008. The main reason for this reform is to enable the German limited company to compete with the limited liability companies of the EU member states due to decisions made by the European Court of Justice, such as Centros and Inspire Art. Switzerland, due to international customaries, limited liability companies could not be established first. But after other European countries allowed this particular company type and it gained popularity in whole Europe, European limited companies started making business in Switzerland. Therefore, eventually, in 1936 limited liability company foundation was integrated into Swiss Law. However, the regulations herein have not been taken one by one and brought the limited liability company closer to partnerships especially in terms of the responsibilities and obligations of the partners. Despite this, legalization could not popularize the limited liability company which was not in demand in Switzerland. However, in the 1990s, especially after the changes establishment and auditing of joint stock companies in the Swiss Code of Obligations, changed the course. In English Law, private company was first enacted in the Companies Act in 1908. With this new legal regulation, limited liability companies have started to be preferred not only by family companies but also by mid-sized companies. In 1992, to comply with the European Union acquis, the implementation of the minimum amount of capitalization for the establishment of the limited liability company was relinquished and the opportunity to be established with a single partner was granted. These two new changes were enough to make British Law popular in Europe. On the other hand, The European Union is trying to ensure that all European laws are uniformly enacted by publishing directives on corporate law. Centros decision of the European Court of Justice in 1999 makes a tremendous impact of these. In accordance with this decision, a person who is legally engaged in trade in any member country of the European Union should be able to trade with his company in other Union countries. Although it is widely criticized in Europe, particularly in Germany, the European Court of Justice has continued to make important decisions on this matter and has become a situated practice. The legal concept of limited liability company entered into American law in 1977 with Wyoming state after it was adopted in almost all European countries. This innovation brought by Wyoming was followed by Florida in 1982. However, due to the uncertainty in taxation, the legalization process has been slowed down for a while. In 1988, after the IRS (Internal Revenue Administration) allowed limited liability companies to be classified as a company, at the end of 1996, 50 states fully enact the laws about limited liability companies. The most important reason for the adoption of the concept of limited liability companies in the United States is the aim of collecting all companies under one roof. The concept of limited liability in the Commercial Law, which entered into force in Turkish Law for the first time in 1926, was regulated in 14 articles. It was criticized in the doctrine on the grounds that the relevant provisions were quoted from French law and the limited number of regulations were inadequate in practice. Therewith, in 1956, amendments were made to the provisions of limited liability company and the Swiss Code of Obligations was adopted as a source of these provisions. During this quotation, the provisions of the Swiss Code of Obligations were not passed into Turkish Law directly, and a different system was adopted, particularly regarding the responsibilities of the shareholders. However, these new regulations have not been fully approved by the doctrine. With the Turkish Commercial Code (TCC) No. 6102, which came into force in 2012, the limited company gained a new appearance and approached to a joint-stock company. It is organized as a capital company within Article 124 of the TCC. Along with the aforementioned changes it has become the most preferred trading company in Turkey. Examining today’s legal systems, it is seen that this artificial species is preferred more than the types of companies that are born and developed in practice. It is obvious that the main reason for this demand for the limited liability company, which is referred to as “the largest legal export of Germany”, is economic. In addition to being close to the capital companies and especially to the Joint Stock Company, the advantages of taxation and capital have increased the sympathy of small and mediumsized enterprises to the limited liability company. European Union directives and the decisions of the European Court of Justice have also contributed to this rapid acceleration. With the addition of American law, the limited liability company has become an indispensable part of universal legislation and practice.
