Anonim Ortaklık Genel Kurul Toplantılarında Gündeme Bağlılık İlkesi Çerçevesinde Yönetim Kurulu Üyesinin Azli
Anonim ortaklıklarda yönetim kurulu üyelerini azletme yetkisi mutlak bir biçimde genel kurula ait olup azil kararı ancak genel kuru gündeminde bu yönde bir madde olması yahut haklı sebeplerin varlığında söz konusu olur (Türk Ticaret Kanunu “TTK” 364/1). Azlin geçerliliği bakımından, genel kurul gündeminde bu hususta azle ilişkin madde bulunması halinde herhangi bir sebep gösterilmesine ihtiyaç yoktur. Ancak bu durumda azledilen yönetim kurulu üyesinin haksız fesih dolayısıyla ortaklıktan tazminat hakkı saklıdır (TTK 364/2). Bir yönetim kurulu üyesinin azline ilişkin karar herhangi bir haklı gerekçe olmaksızın alınmış veya söz konusu azil uygun olmayan bir zamanda yapılmış olması durumunda, üyenin azil kararının ardından kalan görev süresi için tazminat hakkı söz konusu olabilir. Gündemde azle dair herhangi bir madde bulunmaması durumunda ise, haklı bir sebebi olmadan alınmış olması genel kurul kararının geçersizliğine neden olur. Genel kurulun azil kararları, ama sözleşmede aksi belirtilmedikçe, genel nisaplara (TTK 418) göre genel kurulda temsil edilen payların çoğunluğun oyuyla alınır.
Dismissal of A Board of Directors Member In Joint Stock Companies In The Framework of General Assembly Agenda
The general meeting has absolutely a specific authority to remove members of the board of directors according to general assembly agenda at the existence of just causes. (Turkish Commercial Code “TCC” 364/1) For validity of dismissal, in case of removal stated in general assembly agenda, the dismissal does not require any grounds. But in this situation, the compensation right of board member is reserved (TCC 364/2). A board member may have a right to claim damages for the remaining term of office following his/her dismissal, in case the dismissal is to be considered to have taken place on unjustified grounds or dismissal on an improper time. In case of dismissal according to just cause and any removal article in general meeting agenda, the absence of the grounds causes the invalidity of general meeting resolution. Resolutions of the general meeting for dismissal are by majority of the shares represented according to general quorum (TCC 418) unless the statutes otherwise provide.
1. Introduction
The purpose of the study is to determine the dismissal of board members in joint stock companies and to clarify the controversial points in the framework of the principle of commitment to the general assembly agenda. The discussion on whether or not the dismissal is dependent on the principle of commitment to the agenda, the extent to TCC 364 which the effect of justified cause on the decision of dismissal is added can be continued even for today. Should be looked for alternative solutions it is difficult for the item to be found on the agenda.
2. Conceptual Framework
Since the authority of the dismissal is based on the fact that the relationship between the member of the board of directors (proxy) and the partnership (the client) is based on a mutual trust relationship and that the trust can always be terminated, the board members shall always and can be dismissed unilaterally. However, since the right of the general assembly to dismissal the members is a right that causes conditional detrimental right, it is necessary to realize the facts and the reasons set forth in the law in order to use this right. In this context, the dismissal of members should be evaluated separately in accordance with the provisions of the decreasing law.
3. Method
The subject was examined within the framework of Turkish and the referenced Swiss doctrine and judicial decisions. The views of different doctrines were quoted when necessary, transferred to the study, discussed and expressed our personal opinion. The footnote system is preferred as citation method. The Turkish Supreme Court case law and Swiss Federal Court decisions were also evaluated from time to time in the main text. The relevant parts of Swiss Federal Court decisions were translated and included in the text.
4. Findings and Discussion
Due to the absolute nature of the power of the general assembly, it is discussed in the doctrine whether or not the general assembly may use the power of dismissal if there’s no item on agenda. In law no. 6762, the board member have no right to claim compensation even if the members are appointed by the articles of corporation is regulated in OCC 316; the opinion of Supreme Court was the members can be always dismissed by general assembly even there is an agenda item or not. However, there were decisions of the Supreme Court in the opposite direction. Article 364/1 of the current law states that, unlike both OCC 316 and Swiss Law of Obligations 705 f I, the provisions requires the dismissal to an agenda item or the existence of just cause. The issue is mainly discussed at these points.
5. Conclussion
For the validity of the decision, besides the conditions of validity of the other resolutions, it is stated that, there should be an item directly or indirectly related to the dismissal on the agenda, and the partnership may dismiss the board member in the presence of just cause even there’s an agenda item or not. İf there is no just cause, it depends of whether there is any agenda item or not. Thus, if there is not an agenda item, a decision not based just cause shall be unlawful and can be revoked in the meaning of TCC 445 as it does not meet the requirements of the law. If the decision based on an agenda item but without justified reason, the dismissal will be valid but it may be the responsibility of the compensation stipulated in TCC 413/2. In order for this responsibility to occur, in the meaning TOC 512, the decree must be of unjustified nature and there must be a decision of dismissal in an improper time. Although a more severe quorum may be envisaged in the articles of association, but the aggravation shall not be such as to make it impossible. Decree of the decision in the internal relationship should reach board members and goodwill for third parties requires a registration and announcement.
