Istanbul Law Review
Thoughts on the Squeeze-out Right: Appraisal Payment in a Group of Companies and Exclusion of a Partner in a Joint-Stock CompanyMuhammed Sulu
For the first time in our law, the group of companies regulated in the Turkish Commercial Code (TCC) numbered 6102 refers to an organization that does not have a legal personality and is financially and administratively united. Conflicts of interest are common, both between persons within a company and between companies within a group. In the TCC Art 208, it is regulated that when the minority shareholder in a subsidiary company hinders the operation of the company, acts against good faith, causes noticeable distress, or acts recklessly, its shares can be forcibly purchased and removed from the company. The purpose of the provision is to remove a minority shareholder that hinders the operation of the company against good faith and ensure peace within the company. Inherently, there should be a right to leave as opposed to the right to extract (purchase). Thus, the minority, who is oppressed by the majority, will be able to sell their shares to the company and leave the company. Problems regarding the determination and the appraisal payment regulated in various parts of our Commercial Code are also valid in the TCC Art 208. Appraisal payment is basically a value that is equivalent to the demand right corresponding to a capital share. Various and alternative solutions for determining and paying this value are emphasized in this study. Finally, it is observed that the provision of the TCC Art 208 has not been implemented since the adoption of the law, whereas the practitioners are trying to extend this provision to closed-type joint-stock companies. Various suggestions about the acceptance of the right to purchase for jointstock companies have been presented at the end of this study in line with the needs of trade life.
Şirketler Topluluğunda Satın Alma Hakkı, Ayrılma Akçesi ve Anonim Şirketten Çıkarma Üzerine DüşüncelerMuhammed Sulu
Hukukumuzda ilk kez 6102 sayılı Türk Ticaret Kanunu’nda düzenlenen şirketler topluluğu, tüzel kişiliği olmayan, mali ve idari açıdan birleşmiş bir organizasyonu ifade etmektedir. Hem şirket içindeki kişiler hem de topluluk içindeki şirketler arasında menfaat çatışmalarının yaşanması olağandır. Bu bağlamda TTK m 208 hükmünde, şirketin çalışmasını engelleyen, dürüstlük kuralına aykırı davranan, fark edilir sıkıntı yaratan veya pervasızca hareket eden bağlı şirketteki azınlık pay sahibinin paylarının zorla satın alınıp şirketten çıkarılabileceği düzenleme altına alınmıştır. Hükmün amacı dürüstlük kuralına aykırı olarak şirketin işleyişine engel olan azınlığı şirketten çıkartıp şirket içi barışı sağlamak ve topluluktaki menfaat ihtilaflarını topluluk menfaati doğrultusunda çözümlemektir. Meselenin tabiatı icabı, çıkarma (satın alma) hakkının karşısında ayrılma hakkının bulunması gerekmektedir. Böylece çoğunluk tahakkümü altında bulunan azınlığa, paylarını şirkete satıp şirketten ayrılmasına imkân sağlanmış olacaktır. Ticaret Kanunumuzun çeşitli yerlerinde düzenlenen ayrılma akçesinin belirlenmesine ve ödenmesine ilişkin sorunlar TTK m 208 bakımından da geçerlidir. Ayrılma akçesi, en temelde şirket ortağının sermaye payına tekabül eden talep hakkının karşılığını oluşturan bir değerdir. Çalışmada bu değerin belirlenmesi ve ödenmesine ilişkin alternatif çözümler üzerinde durulmuştur. Nihai olarak, TTK m 208 hükmünün, Kanunun kabulünden bu yana hiç bir yüksek yargı kararına yansımadığı, buna mukabil uygulamacıların bu hükmü kapalı tip anonim şirketlere teşmil ettirmeye çalıştıkları müşahede edilmiştir. Bu itibarla, çalışmanın sonunda ticaret hayatının ihtiyaçları doğrultusunda anonim şirketler için de satın alma hakkının kabulüne ilişkin çeşitli öneriler sunulmuştur.
For the first time in our law, the group of companies regulated in the Turkish Commercial Code (TCC) numbered 6102 refers to an organization that does not have a legal personality and is financially and administratively united. The legislator aimed to resolve conflicts of interest between persons within a company as well as companies within the community in favor of the community interest. In TCC Art 208, when the minority shareholder in a subsidiary company hinders the operation of the company, acts against good faith, causes noticeable distress, or acts recklessly, its shares can be forcibly purchased and removed from the company. The regulation on the appraisal right of the controlling company has led to an important paradigm change in joint-stock companies because, in practice, companies that make up a group of companies are largely joint-stock companies. As a rule, it is not possible for a shareholder of a joint-stock company to be squeezed out from the company against its will. It is no doubt that it is not a coincidence that this regulation, which may be against the structure of joint-stock companies, is allowed for a group of companies. This is because the emergence of conflicts of interest in a group of companies is higher than that of individual companies.
The appraisal payment is basically a value that is equivalent to the demand right corresponding to the capital share of the company partner. In accordance with the principle of protecting the capital of stock companies, while the company continues its existence, the partners cannot reclaim what they have given to the company as capital. However, although the shareholder who leaves the company will no longer benefit from being a partner, the capital share s/he has brought to the company still belongs to the company. To prevent this situation that will cause unjust enrichment, the legislator has established the appraisal payment system. Three valuation methods are used in determining the value of company shares in our country. Among these, the asset-based valuation method is the most frequently used in judgments because of its easy auditing and applicability. In the classical sense, the equity value is determined by subtracting the liabilities from the company’s assets, and this value is proportioned with the relevant share. In today’s world, it is obvious that it is unfair for companies to be valued only with elements such as tables, chairs, and computers. The second frequently used method is the market-based valuation method. In this method, the value of a company is determined by comparing it with companies that are in a similar market situation with it. This method does not include the expectation determinations about the future of a company, but in this method, the annual cash flow in the company is largely determinant. The least used generally accepted valuation method is the income-based valuation method. In this method, in addition to the procedures of the first two methods, a company’s future expectations are also added to the calculations.
In both TCC Art 208 and other relevant cases in the TCC, determining the cash equivalent of the appraisal payment corresponding to the capital share in the company of the leaving partner is important in preventing disputes. After the determination of the payment amount, in our opinion, there is no objection to the appraisal payment with benefits. According to TCC Art 4, disputes about appraisal payment are absolute commercial cases. In this respect, according to TCC Art 5/A, it is required to apply to a mediator to file a lawsuit for the appraisal payment. The emergence of various and versatile solutions in the mediation practice of our country, which aims to create a “win-win” situation, is promising in terms of our consensus culture. Alternative solutions, such as hiring the applicant or a relative under certain conditions and selling the company’s property to the applicant at a discount instead of cashing out the appraisal payment, are some of the examples that are in the interest of both parties. After it has been agreed that the appraisal payment is to be settled with a non-cash benefit, in the event of default on this debt, the debtor company may be requested to pay the initial cash provision.
The current legal regulation does not allow the squeezing out of a partner of a jointstock company who violates the obligation of loyalty, prevents the company from working, and disturbs the peace within the company by violating good faith, except when it is a partner of a subsidiary company in a group of companies. However, in practice, to establish peace within the company and to sustain the existence of the company, the provisions about the squeezing out of a partner of a joint-stock company for a just cause should be regulated in the law.