SCOPE AND THE EFFECT OF THE SHARE VOLUME IN THE JOINT STOCK COMPANIES 21 May 2020
In the joint stock companies, the shares granting the shareholder some rights related to their assets and management can be subject to share lien due to the shareholder's debts to third parties. Foreclosure results in restriction of the debtor's power of disposition in favor of the creditor on the foreclosed property. However, as a rule, it does not give the creditor the right to benefit from the consequences of the property or right that is seized. Similarly, there will be restrictions in favor of the creditor on certain rights of the shareholder in the lien of the joint stock company. In this context, in cases where the shares in the joint stock companies are foreclosed, it is important which rights are included in the scope of the lien. It will be appropriate to examine the effects of foreclosure separately in terms of assets and administrative rights granted to the shareholder in the lien of the shares of joint stock companies.
1. Property Rights
a. Dividend Rights
The dividend right that we encounter as one of the basic assets of the shareholder gives the shareholder the right to participate in profit in proportion to their shares in the basic capital. With that; If there is no contrary regulation in the articles of association, when calculating the dividend, the amount of capital paid by the shareholder will be taken into consideration, not the amount of the commitment.
Since the profit share is the result of the share, it mainly belongs to the shareholder. The confiscation of the stock does not mean that the spontaneous dividend has been foreclosed. For this reason, in practice, İİK m. In the letter to be sent to the company as per 94, it should be stated that, besides the share, the dividend is foreclosed. For this, the creditor must request the decision of the enforcement office to decide not only the share but also the dividend.
b. Right to Liquidation Share
Liquidation share is a right that is dependent on the liquidation of the company and its usage is stipulated in the relevant laws and articles of association. Turkish Commercial Code for the birth of the right m. In accordance with 543, the procedure for liquidation of the company must be carried out.
It should be noted here that the right to liquidation share cannot be exercised as long as the joint stock company continues its activities. In case of liquidation of the company, the liquidation share is the share of the remaining amount of the company to be given to the shareholders upon the completion of the liquidation process of the company, "proportionally with the payments made by the shareholder to the company for the capital share if there is no provision contrary to the articles of association". In this context, it can be said that if the company is liquidated, the liquidation share has replaced the share in a sense. Therefore, it is possible to say that the foreclosure established on the share will continue on its own liquidation share.
c. The Right to Get Bonus (Gratis) Shares
Since the right to acquire bonus shares is considered as a root right, it is not possible to evaluate it as an economic asset separate from the share. For this reason, the right to acquire a bonus share of the stock share will be automatically foreclosed.
2. Administrative Rights
The right to attend the general assembly; It is a right that cannot be conditional, prevented or limited. In terms of the exercise of the right, ownership of usufruct rights is authorized for owners and shares with usufruct right. If it is evaluated that the share of the voting right belongs to the shareholder and not from the foreclosure, it is concluded that the right to attend the general assembly belongs to the shareholder. Besides; right to receive information TCC m. As it is clearly given to the shareholder in accordance with 392, it is considered that it is not binding for the company to request information from the creditor of the creditor.
