The banks have always been a focus of interest regarding the misuse of their sources for the sake of personal benefits. The main actors of the said misuse, however, are the auditors, who do not fulfil the auditing activity or duty as it should be and as a consequence, impair the affectivity of the audit, and the managers, who try to satisfy their personal benefits and ambitions by way of the use of the sources of the banks via intentional or careless behaviours through the acts and procedures contrary to the applicable laws. Thus, when the mismanagement and lack of audit come together, it will then be inevitable for the banks pertaining thereto to incur substantial scales of losses.

On the other hand, the financial markets have been globalised due to the developments in the communication technology our era. In this case, the scope of the losses of banks arisingfrom the activities being designed for the satisfaction of the personal benefits or interests of the bank managers and audits is extended. According to this, a crisis commencing with a bank may spread over other banks in a country through a triggering effect of the social panic environment and throw them into a crisis and through a kind of domino effect and cause the said banks to collapse. Thus, a crisis commenced with a bank can cause a systemic banking crisis nationwide (Article 72 of the Banking Law). Consequently, it becomes possible for crisis of this kind to put the country into a general economic crisis. Even further, a crisis of this kind commencing with a bank is able to create a regional crisis exceeding the boundaries of countries geographically by affecting the countries, taken place within the close proximity of it, having experienced similar economic problems in the world. The concrete examples of this circumstance have been experienced in the banking crises, commenced in Mexico in the year of 1994 and spread over Argentina and Brazil consequently and then, turned into a Latin America financial crisis and subsequently, commenced in Thailand in 1997 and spread over Indonesia, Malaysia and South Korea and finally, turned into the financial crisis of the South-Eastern Asia. This circumstance, explained with ‘’the theory of the contagion effect of the banking crises’’ put forth the dimension and importance of the bank’s loss. 

In the face of this circumstance, the Governments have been required to necessary measures for preventing banks’ losses or crises. There have been various legal arrangements, expected heavy responsibility in deterrent nature bearing the objective of preventing the activities making the bank incur loss. 

It was adjudged by the lawmaker at the Turkish law having referred to Article 100 of the Banking Law that it might be possible to remove or invalidate the operating permit of a bank as a result of the decisions and procedures of the managers and auditors of a bank contrary to the applicable law or in case of the determination of the fact that they caused the related bank to be transferred into the Fund, then, it would be possible for the competent court to decide upon their personal bankruptcy directly upon decision of the board of the Fund and following the request of the same. 

It is necessary to determine on a clear and net basis the scope of this arrangement that adjudges upon a substantially serious responsibility such as personal bankruptcy with relation to the responsibilities of the managers and auditors of a bank as a result of their act(s) having caused their bank to incur loss at a degree that may bring the bank into crisis. This determination appears to be important for the stability of the application.

However, the arrangement of Article 110 contains an important gap that makes this determination difficult. Namely: 

There is not any direct or indirect explanation at all, taken place in the expression and reasoning of the arrangement of the Banking Law, with relation to the nature of the responsibility in the event that the bank’s loss is jointly caused by more than one person. This uncertainty renders the determination of the scope of this arrangement difficult bearing the topic of ‘’Personal Responsibility’’. For this, it is necessary to make a comment, based on the realities of banking and sound legal bases, and present a solution proposal. 

In the face of this necessity, various evaluations have been made at the doctrine and Turkish Banking Law and different solution proposals have come forth.

Within the scope of these evaluations, in case the creation of the bank’s loss by more than one person on a joint basis within the framework of the arrangement of Article 110, of the principle of the differentiated responsibility, accepted in the arrangement of Article 759 of the Swiss Law of Obligations through the reform in the Swiss Law on the Joint Stock Companies in 1991 and transmitted from this arrangement into the arrangement of Article 557 pertaining to the responsibilities of the members of the board of directors of the Joint Stock Companies of the Turkish Commercial Law no. 6102, the question of applicability of the said principle as a general provision through the instrumentality of Article 2/3 of the Banking Law. According to this, in comparison of the principle of the full succession responsibility with its results contrary to the equity that rules out opportunity for the debtors to put forth the causes of personal reduction such as degree of negligence and so on, in an external relationship, is the principle of the differentiated full succession that allows to bring forth the aforementioned causes of personal reductions and therefore, thought to be in conformity with the equity in general, in conformance to the objective for the arrangement of Article 110 and also the willpower of the lawmaker? Even further, in the face of the conviction, indicated by us; and when the principle of the differentiated full succession responsibility is applied within the framework of the arrangement of Article 110 in case the bank’s lost in question is caused by more than one person, will the results in conformance to the equity come forth from the point of view of the responsibilities of the managers and/or auditors and of also the provision of the balance of benefits or interests?

The subject of this article is related to the willpower of the lawmaker of the applicability of the principle of the differentiated succession responsibility, and objective of the arrangement in the event that the bank’s loss within the framework of Article 110 and even beyond all these, the evaluation of whether it is in conformance to the establishment of a balance of benefits, required by the equity within the framework of the arrangement of Article 110. 

In order to make this evaluation, the mentioned legal problem or question will be determined within the content of the article before all else, and the evaluations for the solution of this question at the doctrine of the Turkish banking law and different proposals for solutions thereunder. Subsequently,

In this context, our own evaluation and the proposal for solution that we have concluded as necessary to be available hereunder within this direction will be explained within the light of all these evaluations and proposals for solutions.