LEGAL RESPONSIBILITY OF COMPANY MANAGERS AT LIMITED LIABILITY COMPANIES
Legal
responsibility of the company managers of limited liability companies is not
distinctively regulated under Turkish Commercial Code ("TCC")
numbered 6102. With reference of Article 644/1 of TCC to Article 544 of TCC, provisions
regulating the responsibilities of board of directors of joint stock companies shall
also be applicable to limited liability companies.
Pursuant to
the above mentioned reference, in case manager(s) of limited liability companies
breach their liabilities arising from Law and articles of association of
company by their fault, they shall be responsible to the company, shareholders
and creditors due to the loss arisen from the breach.
The company itself,
shareholders and creditors of the company have right to file a law suit due to
the responsibility of company manager(s). General assemblies were obliged to
discus and/or decide regarding initiation a law suit against the manager(s) pursuant
to the related provisions of annulled Turkish Commercial Code ("annulled TCC").
However, the mentioned statutory obligation has been annulled with new TCC numbered
6102. The company, shareholders and creditors of the company are allowed to file
a law suit directly due to the responsibility of the manager(s). However, in
case of release of company manager, proof of faultlessness and lapse of time,
the responsibility of the manager ceases.
The company
manager shall be responsible in case any loss occurs due to his/her fault. In
such a case the company manager shall be obliged to indemnify the loss.
The new TCC
numbered 6102 foresees differentiated solidarity principle differently from certain
solidarity principle regulated under the annulled TCC. Thus, the differentiated
solidarity principle is applicable for indemnification procedure in case of
joint responsibility of company managers. Hence, the indemnification
responsibility of each manager shall be determined as per the degree of fault
and other facts in case of joint responsibility.
In case there
are more than one company managers and the loss is originated from the fault of
one of these company managers, only the related manager shall be responsible.
The court
shall determine in a law suit initiated due to the responsibility of company
manager(s);
whether any loss has occurred or not,
the loss is originated from joint responsibility or
sole responsibility of company manager(s)
The court shall
reject the claims regarding the manager(s) who have not any responsibility for the
loss of the company. In case there is one company manager, then this manager shall
be directly responsible from the loss.
The company and
each shareholder may claim compensation for the loss of the company.
Shareholders and the company are only allowed to demand payment of compensation
to company. The law suit regarding responsibility of manager(s) can be
initiated against the responsible manager(s) before the Commercial Court of
First Instance where the head quarter of the company is located in. Simple
trial procedure shall be applied.
With regard to Article 560 of TCC, the claimant
is entitled to claim for compensation within 2 (two) years’ period starting
from learning of the loss and the responsible manager(s). Under any
circumstances the lapse of time expires after 5 years’ period starting from the
action which caused the loss.