Withdrawal and Removal of Partners in Companies

When discussing company types, it is necessary to refer to various types of companies. In addition to limited liability companies, general partnerships, and limited partnerships, there are also cooperative companies, consortium partnerships, and sole proprietorships. In Turkey, the most commonly encountered and used type of company is the limited liability company. However, other types of companies also operate.

Limited şirketler ortaklık kurma konusunda cazip yönleri olması nedeni ile daha fazla tercih edilmektedir. Limited Şirketin kuruluşu kolaydır. Ayrıca limited şirketler alacaklılara karşı şirketin mal varlığı ile sorumlu tutulur. 6102 sayılı Türk Ticaret Kanunu (TTK) ‘nda limited şirket ortağının ortaklıktan çıkması ve çıkarılması konusunda birçok düzenleme bulunmaktadır. Bunların bir kısmı limited şirket hükümleri arasında özel olarak düzenlenmekte iken bir kısmı tüm ticaret şirketlerine ilişkin ortak hükümler arasında yer almaktadır. Limited şirketlerde ortaklıktan çıkma, TTK 638. Maddesinde düzenlenmiştir.

Withdrawal can be defined as a partner's voluntary termination of their legal relationship with the partnership. For a partner to withdraw, the partnership agreement must grant a right of withdrawal or there must be valid reasons for withdrawal. If one of these reasons is present and a partner has filed a lawsuit for this purpose, any other partner who is in the same situation regarding the reasons can also join the lawsuit.

Regulation of Withdrawal from Partnership in the Company's Articles of Association

Withdrawal based on the company's agreement is regulated under TCC Article 638/1. It is possible to grant partners the right to withdraw from the company in the company's articles of association. As a general rule, a declaration of withdrawal from the partnership is not subject to form requirements. However, the right to withdraw granted in the company agreement can be subsequently removed. This change in the agreement must be made by unanimous decision of the partners. Simply having a provision for withdrawal in the company's articles of association is not sufficient; the conditions for such regulation are also important. The agreement may condition withdrawal upon the fulfillment of certain requirements, time, other conditions, or contingencies. In such cases, it is necessary to check whether these conditions have been met. It is essential to consult with a lawyer who specializes in commercial law, corporate law, and withdrawal procedures to determine the process and follow the correct procedure.

In the agreement, it may be specified that some partners have the right to withdraw from the partnership while others are prohibited from doing so. However, Article 358 of the Turkish Commercial Code regulates the principle of equal treatment. According to this principle, shareholders must be treated equally under equal conditions. Since such a provision would constitute a violation of the principle of equal treatment, we believe that this condition would not be considered valid.

The reasons for withdrawal specified by the Commercial Code in the company's articles of association are as follows:

Restructuring: Through restructuring agreements, companies participating in a merger may offer the right to withdraw from the partnership as an option before the merger. According to Article 141 of the Turkish Commercial Code, shareholders of companies participating in a merger under restructuring agreements may exercise their right to withdraw before the merger. A withdrawing partner is free to leave the company by receiving a separation compensation equivalent to the real value of the company shares.
Splitting: A partner may exercise the right to withdraw from the company as a result of the company's division. To facilitate this, the conditions must be established either through an agreement or mutual consent. In this case, the partner can leave the company. Article 161 of the Turkish Commercial Code (TCC) does not grant partners the right to withdraw by receiving a separation compensation in the event of the company's division.
Change of Type: The change of type is regulated between Articles 180-190 of the Turkish Commercial Code (TCC) No. 6102. If mutual consent is obtained or if the partnership agreement does not prohibit withdrawal, a partner may leave the company based on these conditions.

Removal of a Partner Based on Justified Cause & Removal of a Partner by Court Decision

In order to remove a partner from a limited liability company based on justified cause, the fundamental criterion is that the continuation of the partnership relationship has become impossible. Justified cause can arise from issues related to the partners' business relationships within the company or from personal relationship problems. In such cases, the fault of the parties will not be considered; it is sufficient that the situation renders the continuation of the partnership relationship impossible.

Although the law does not provide a clear definition of justified causes, various provisions in different articles of the law list what can be considered as justified causes. Article 245 of the Turkish Commercial Code (TCC) provides examples of justified causes for the termination of the company and the departure of a partner.

A partner's betrayal of the company in its management affairs or in the preparation of its accounts,
A partner's failure to fulfill their primary duties and obligations,
A partner's misuse of the company's trade name or assets for personal gain,
A partner's loss of the ability and competence necessary to perform the company's duties due to a persistent illness or other reasons.

Justified causes are not limited to the situations described above. In each specific case, whether there are justified causes is examined separately, taking into account the personal characteristics of the withdrawing partner and the structure of the company. Article 638/2 of the Turkish Commercial Code (TCC) provides that every partner has the right to withdraw from the company in the presence of justified causes. However, this right must be exercised through legal action. Article 638/2 of the TCC regulates the case of withdrawal from the company in the presence of justified causes. According to this legal provision, each partner can file a lawsuit to have the right to withdraw from the company determined in the presence of justified causes. The court will examine whether the justified causes for withdrawal exist.

Separation Compensation

According to Article 641/I of the Turkish Commercial Code (TCC), if a partner withdraws from the company, they have the right to request the payment of a separation compensation calculated based on the real value of their equity share. The previous TCC did not provide detailed regulations on separation compensation, which led to significant practical difficulties. The current provisions in Articles 641 and 642 of the TCC offer detailed regulations on separation compensation. The separation compensation, defined as the payment corresponding to the share of the partner who is removed from the partnership, must be in line with the real value of the partner's equity share according to the relevant legal provision. The real value of the share and its nominal value are different concepts. The rationale for Article 641 of the TCC indicates that withdrawal encompasses all forms of exit, including voluntary and involuntary removal, and death, and emphasizes that removal from the partnership should not allow for confiscatory or punitive approaches. However, it is also noted in the legal rationale that while the term "real value" is not specifically defined in the law, it refers to the balance sheet value. According to Article 641/2 of the TCC, the company’s articles of association may regulate separation compensation differently due to the right of withdrawal provided in the articles. Therefore, partners can freely regulate this matter in the agreement, provided they do not violate the principle of good faith. It should be noted that there is no obligation to regulate separation compensation in the articles of association. However, the absence of a regulation on separation compensation in the agreement does not mean that a partner cannot or will not be able to claim it. If an agreement on the real value of the share cannot be reached, the real value of the share can be determined by the court. In conclusion, regardless of whether the articles of association contain a provision on separation compensation, the withdrawing partner will always be able to claim the compensation corresponding to the real value of their equity share from the company under all circumstances.

According to Article 642 of the Turkish Commercial Code (TCC), regulations regarding the payment of separation compensation and the point at which it becomes due are provided. When examining the text of the article and its rationale together, it can be concluded that the point at which the separation compensation becomes due depends on whether the company has sufficient equity. According to this provision, if the company has sufficient available equity to pay the separation compensation when a partner withdraws, or if the partner's withdrawal is based on a reduction in the company's capital, meaning that the capital has been reduced in proportion to the share value, then the separation compensation will become due on the date the partner withdraws from the company.

Cancellation Lawsuit

According to Article 640/II of the Turkish Commercial Code (TCC), a partner who has been removed from the partnership has the right to file a cancellation lawsuit against this decision. According to Article 622 of the TCC, provisions concerning the annulment and invalidity of general assembly decisions for joint-stock companies are similarly applied to limited liability companies. However, the legislator has deviated from the joint-stock company provisions regarding the commencement of the period for filing a cancellation lawsuit. For the cancellation lawsuit related to the decision of removal from the partnership, the three-month period begins from the date the decision is notified to the partner through a notary.

Given that the provisions for the annulment of decisions in limited liability companies are referred to by analogy from joint-stock companies, the conditions for filing a cancellation lawsuit against general assembly decisions of joint-stock companies are also applicable to limited liability companies. Therefore, the question arises: Should the conditions stipulated in Articles 445 and following of the Turkish Commercial Code (TCC) be met for a partner in a limited liability company to file a cancellation lawsuit against a decision of removal from the partnership, or is the right to file such a lawsuit specific and can it be exercised without the need to fulfill additional conditions? If the first possibility is accepted, it would be required to verify whether the partner attended the meeting, expressed their dissent and recorded it in the minutes, whether they were unable to attend the meeting due to improper notice, or whether unauthorized persons attended the meeting and influenced the decision. If the second possibility is accepted, the right to file a cancellation lawsuit would be acknowledged even if the partner was unable to attend the meeting due to reasons such as work, being abroad, illness, etc. Although the legislator has explicitly introduced a different regulation regarding the start of the cancellation lawsuit period, no specific explanation has been provided for this matter. In our opinion, accepting the second possibility is more appropriate due to the significant impact that the termination of a partnership decision can have on a partner and the need for judicial review of such crucial decisions without additional conditions. Moreover, requiring additional conditions for judicial review of a general assembly decision on a significant matter like removal from the partnership would be incompatible with legal certainty.

Court with Jurisdiction and Authority in Withdrawal Lawsuits from Limited Liability Companies

The court with jurisdiction for withdrawal lawsuits is the Commercial Court of First Instance, according to Article 5 of the Turkish Commercial Code (TCC) No. 6102. In places where there is no Commercial Court of First Instance, the competent court is the Civil Court of First Instance in that location.

The competent court for a withdrawal lawsuit is, according to Article 6 of the Turkish Civil Procedure Code (Law No. 6100), the court located at the place where the company, from which the partner is withdrawing, is headquartered at the time the lawsuit is filed.

Who is the Defendant in a Withdrawal Lawsuit from a Limited Liability Company?

The Turkish Commercial Code No. 6102 does not specify who a partner should file a lawsuit against when withdrawing from a limited liability company. This issue has been resolved through the decisions of the Court of Cassation. For example, in its ruling dated September 15, 2014 (Case No. E/5041, Decision No. 13783), the 11th Civil Chamber of the Court of Cassation stated that "In a lawsuit seeking permission to withdraw from a limited liability company, the claim must be directed against the company."

According to the aforementioned decision, a partner seeking to withdraw must name the company they are a partner of as the defendant in the lawsuit.

Sample Petition for Withdrawal Lawsuit from a Limited Liability Company

İstanbul Nöbetçi Asliye Ticaret Mahkemesi’ne

DAVACI : ………………………..

VEKİLİ : Av. Burak KURÇALOĞLU

DAVALI : ……………. ……………. .İth. İhr. San. ve Tic. Ltd. Şti.- ……

KONU : Müvekkilimizin, şirket ortaklığından çıkarılma istemimizden ibarettir.

AÇIKLAMALAR : Müvekkilimiz, 13.07.2009 tarihinden bu yana …………………..İth. İhr. San. ve Tic.Ltd.Şti.’nin ortağıdır. Müvekkilimiz, ortaklığın başladığı tarihten bugüne kadar şirketin iş ve işleyişiyle ilgili diğer ortaktan bilgi alamadığı gibi ,kar dağıtımı yapılmamaktadır. Bu nedenle Müvekkil, T.T.K. gereğince haklı sebeplerle şirketin ortaklığından ayrılmak istemektedir.

Davalı şirket, faaliyet konusundan uzaklaşmış, sürekli zarar etmiş, malvarlığı israf edilmiş, hakkında icra takipleri açılmıştır. Ayrıca; bahse konu şirketin ticaret sicilde kayıtlı adresinde olmadığına müşahade edilmiştir. Limited şirketin ortaklık mevcudu kalmamış, şirket otaklığından ayrılmak isteyen müvekkilimiz diğer ortağa bir türlü ulaşamamaktadır.

Ortaklar arasındaki güven ilişkisi sona ermiş, diğer ortak kendi kusurundan kaynaklı şirketin kuruluş gayesinin gerçekleşmesinde hukuki ve ekonomik imkansızlık meydana gelmiştir. Şirket devamlı olarak zarar etmiş ve kar sağlayamamakta, şirket yönetiminde yolsuzluklar yapıldığı kanaatimiz oluşmuş, şirket müdürü olan diğer ortak şirketi iyi idare edememiştir. Ayrıca basiretli tacirden de söz edilemez olmuştur.

“TTK’nın 638’inci maddesinin ikinci fıkrasında “Her ortak, haklı sebeplerin varlığında şirketten çıkmasına karar verilmesi için dava açabilir.” ” Şeklindedir. TTK m. 245’te, “bir ortağın şirketin yönetim işlerinde veya hesaplarının çıkarılmasında şirkete ihanet etmiş olması” veya “bir ortağın kendisine düşen asli görevleri ve borçları yerine getirmemesi” ve bunlara benzer haller haklı sebep olarak nitelendirilmiştir.

Yukarıda ki açıklamalarımız ışığında Türk Ticaret Kanunu hükümleri uyarınca müvekkilin haklı sebeplerle şirket ortaklığından çıkarılmasına karar verilmesi için mahkemenize başvurmak zorunluluğu doğmuştur.

HUKUKİ NEDENLER:TTK. BK. vs ilgili mevzuat

DELİLLER : Tescil belgeleri, keşif, ticaret sicil kayıtlan, Ticari defterler,, Tanık, vs her türlü delil

İSTEM VE SONUÇ : Yukarıda açıklamış olduğumuz nedenlerle; öncelikle Türk Ticaret Kanunu hükümleri uyarınca müvekkilin haklı sebeplerle şirket ortaklığından çıkarılmasına karar verilmesi, yargılama giderleri ile vekalet ücretinin davalılar üzerinde bırakılmasına karar verilmesi saygılarımızla bilvekale arz ve talep olunur. 07.09.2022

Davacı Vekili

Av. Burak KURÇALOĞLU

EKLER:

Vekaletname Onaylanmış Sureti

Ticaret Sicil Gazetesi

Withdrawal and Removal of Partners in Companies