THE PARTIES TO THE ACTION FOR RIGHTFUL DISSOLUTION OF THE LIMITED COMPANY

Abstract:

In the presence of one of the justified causes, each of the company partners can demand the rightful dissolution of the company from the court. In cases where there is more than one partner or manager of the company in the action for rightful dissolution, the titles of the defendant and the plaintiff may change. In our article, the procedure for the dissolution of the limited company and the defendant and the plaintiff parties are examined in case of the presence of justified causes regulated in the third paragraph of Article 636 of the Turkish Commercial Code.

Introduction: 

In the third paragraph of article 636 of the Turkish Commercial Code No. 6102, it is regulated that the dissolution of the limited company can be demanded in the presence of justified causes. Also, in the presence of the conditions specified in the second paragraph of the article, a rightful dissolution can be demanded. In the presence of one of the justified causes, each partner may demand the dissolution of the company from the court.

Although there is no clear regulation in the law about the concept of justified cause, in the doctrine and the practices of the Supreme Court, the concept of justified cause has been accepted as situations that make the partnership relationship unpleasant and where the partner shall not be expected to maintain the partnership relationship according to the good faith. The justified cause will be judged by the court in accordance with objective and impartial criteria in each concrete case.

1. Judicial Procedure

The action for the rightful dissolution of the limited company is a type of lawsuit that is heard by the Commercial Court. The competent court is the Commercial Court where the headquarters of the company is located, however, in cases where there is no Commercial Court, a lawsuit shall be filed in the Civil Court of First Instance. The action is heard as a simple trial procedure. Since there is no action cost in the actions for rightful dissolution, the fee is paid as a fixed price.

The duration of the lawsuit is not clearly stipulated in the law. However, it is not always possible to file a lawsuit. If the action for rightful dissolution is filed against the rule of good faith in terms of time, the action is rejected by the court because of the time.

The dissolution of the company must be explicitly demanded in the demand-result part of the rightful dissolution. Otherwise, the Court cannot rule on the dissolution of the limited company. On the other hand, in the case where dissolution is requested, the court may order the payment of the actual value of the share to the plaintiff partner and the dismissal of the plaintiff partner from the company instead of dissolution, or another solution appropriate to the situation. Therefore, the dissolution of the company shall be the last decision to be made. In the justification of the provision of the article, it is stated that the judge has extensive powers for the benefit of the company.

When an action for dissolution is filed, various measures can be taken by the court, especially the appointment of a trustee, depending on the situation.

2. Defendant

The defendant in the action for rightful dissolution of the limited company is the legal entity of the company. If the company partners are presented as defendants, the case must be rejected because the formation of a party cannot be ensured.

In limited companies with two partners, according to the dominant view adopted by the Supreme Court and the doctrine; In cases where the number of partners of the limited company is two and the plaintiff partner is one of the two partners, the other partner is deemed to be the defendant, and the formation of the party is deemed to be ensured. However, there are also Supreme Court resolutions that indicates the opposite of this view.

In our opinion, in limited companies with two or more partners, the formation of a party is deemed to be ensured if all partners are presented as parties in the cases for rightful dissolution. However, since the Supreme Court has also decided to the contrary, the best course of action is to present the defendant as a legal entity of the company.

Company directors represent the defendant company in the action for dissolution. If there is more than one director in the company, the dual signature rule is valid unless otherwise stipulated in the contract. Based on the reason that the company directors will represent the company, this action cannot be filed against the company directors, and accordingly, the formation of a party cannot be ensured.

If the partner who filed the action for dissolution is also the sole manager of the company, a trustee is appointed to represent the limited company in the action filed.

3. Plaintiff

Within the scope of the 636/3 provision of the TCC, the partners have the title of plaintiff in the action for rightful dissolution of the limited company. Persons other than the partners do not have the right to file a case for rightful dissolution under this article. In other words, creditors who do not have the title of partner and directors appointed from an outside source shall not file this action. Likewise, it is not possible for the person leaving the partnership to file this action.

The partner must retain the title of a partner for the duration of the case. Otherwise, the case must be dismissed. If the dispute is ongoing and there is no final decision, then the court shall make the outcome of the court that hears the dispute a preliminary issue. In the resolutions of the Supreme Court, such resolutions may be seen. In the Articles of Association, the shareholders’ right to file an action cannot be limited or omitted.

In case the limited company has only one partner, an action for dissolution of the limited company cannot be filed by a single partner. Because the partner can dissolve the company with a written General Board resolution. If the share belongs to more than one person, this action can be filed by appointing a common representative.

Although it has been stated that it is not possible to file an action for rightful dissolution by a person other than the partner of the company, in some exceptional cases, some persons may meet the case as a plaintiff alongside the partner. If the partner has a usufruct right on his share, the holder of the usufruct right can meet this action by taking side with the partner. In the event of the partner’s bankruptcy, which is another situation, the right to file an action passes to the trustee in bankruptcy. In the case of the bankruptcy of the limited company after the action is filed, the right and authority to continue the action pass to the trustee in bankruptcy. If the partnership interest is transferred while the dissolution lawsuit is ongoing, the new shareholder holding the title of partner can continue the action. The heirs of the plaintiff partner can also continue the action if the partnership interest is transferred to them.

In such cases as we have mentioned, third parties other than the partner may also have the title of plaintiff.

Conclusion:

Within the scope of the 636/3 provision of the TCC, the action for the rightful dissolution of the limited company is a type of action filed by the shareholders of the company in the Commercial Court against the legal entity of the company. Although it is stated in the Supreme Court and the doctrine that the shareholders of the company can also be presented as defendants in some cases, there are also Supreme Court resolutions stating the contrary. Therefore, the best course of action is to present the company’s legal entity as a defendant. In addition to the plaintiff, third parties may also meet the case, except for company partners. The filing of the action is not limited to any duration. The dissolution of the company must be explicitly demanded in the conclusion and request part of the action. A decision is made by the court if there is no option other than the dissolution of the company. This shows that termination is the last resort.