Establishment of Companies in Türkiye

There are 5 types of companies in Türkiye. Joint Stock Company, Limited Liability Company, Collective Company, Comandit Company and Cooperative.

Joint stock companies, limited liability companies and limited liability companies divided into shares are limited liability companies. In capital companies, the partners are only responsible to the company with the capital they have committed.

Ordinary and collective companies are private companies. In private companies, the principle of secondary and unlimited liability of the partners from the company debts applies. The establishment, basic features and operations of these companies are regulated in the Turkish Commercial Code No. 6102. The Cooperatives Law No. 1163 is first applied to the Cooperative.

Joint stock companies and limited liability companies are the most common types of companies in Turkey. While 82% of the companies are limited companies, 13% are joint stock companies and 4% are cooperatives. 1% of the companies are collective and commandite companies.

Joint Stock Companies is the company that is responsible for its debts, the capital of which is certain and divided into shares, only with its assets.

A   joint stock company is a company whose capital is determined and divided into shares and whose debts are only responsible for its assets.

Shareholders are only responsible to the company with the capital shares they have committed. The minimum capital amount of these companies is 50,000 Turkish Liras. In terms of non-public joint stock companies that accept the registered capital system, the initial capital is at least 100,000 Turkish Liras. At least one quarter of the nominal values of the shares committed in cash must be paid before registration. The remaining amount shall be paid within 24 months following the registration of the company. Payment schedule can be arranged in the articles of association of the company or determined by the board of directors.

Joint stock companies may issue registered and bearer shares to represent the shares. They can also issue bonds and similar debt instruments.

A limited liability company is a company whose capital is determined and divided into shares and who is responsible for its debts only with its assets. A single partner limited liability company can be established. The number of partners shall not exceed fifty. Limited company partners can be real persons or legal entities.

The main capital of the  limited liability company is at least 10,000 Turkish Liras. Bearer shares cannot be issued in limited companies. The limited liability company has two organs, the general assembly and the board of directors.

The collective company is established with at least two partners. Each of the company’s partners has the right and duty to manage the company separately. However, management works may be assigned to one, several or all of the partners by the articles of association or by the decision of the majority of the partners. Only real persons can be partners in the collective company.

Ordinary Comandit company is a private company, while the commandit company, whose capital is divided into shares, is a capital company. A commandite company may be formed by at least two persons, one known as a commandite (unlimited liability) partner and one known as a commandite (limited liability) partner.

Cooperatives are variable partnership and variable capital partnerships established by real and legal persons in order to provide and protect certain economic interests of the partners and especially the needs of their profession or livelihood by contributing labor and money through mutual aid, solidarity and surety. Each shareholder undertakes at least one and at most five thousand shares. The value of a partnership share is 100 TL.

Establishment Phases

Users start the company establishment process by creating a free membership on the web page of MERSIS. While creating a company contract in MERSIS, Turkish citizens can be added as partners or authorized with their identity numbers and foreigners with their passport numbers. However, foreigners must first obtain a tax number from the tax office and apply to the trade registry office and register themselves with MERSIS.

2. The signature declarations of the company officials must be prepared by approving the signatures of the persons authorized to represent the company on behalf of the company title by the competent authority. In Turkey, this process is carried out at any trade registry office.

3. Payment of the cash capital with the share of the competition authority. 0.04% of the company capital must be deposited in the bank account of the said institution as “Competition Authority Share”. You do not need to go to the bank for this process. Like other establishment transactions, this amount can be paid at the trade registry office.

4. Application to the Trade Registry Office for registration

Upon the application of the founders to the registry office with the relevant documents, the trade registry office completes the registration process.

In addition, in the establishment of the cooperative with joint stock and limited liability companies, the commercial books to be kept by them are approved by the trade registry office and given to the relevant person after registration.

You can contact us if you want to get additional information.

Author of the text: Doruk Arslan

MERSIS Registration System Application

MERSIS Registration System Application can be used for purposes such as application, change application, structure change, follow-up of ongoing applications. To set up a company using MERSİS, you need to click the Organization Application button and select one of the company types in the list that will appear. This company may be Joint Stock Company, Limited Company, Commercial Enterprise, Branch, Collective Company, Commandite Company, Equipping Affiliate, or Cooperative.

Incorporation: Depending on the type of company selected according to the company type and subtypes field, if there is a subtype, it is automatically brought by the system. Depending on the type of Joint Stock Company, subtype selection is made: Number of Shareholders More than One Joint Stock Company, Single Shareholder Joint Stock Company, “Province-District” where the organization will be made, “Tax Office” of the organization and Trade Registry Directorate (relevant TRD).

If the establishment will be established in the structure of a joint stock company subject to the permission of the Ministry, the transaction is made by ticking the box subject to the permission of the Ministry.

Once you have filled in all the fields, you can access the organization operations menu. In this menu, the fields of Joint Stock Company Shareholders, Real Person Shareholder / Partner, Legal Person Shareholder/Partner, Unregistered Legal Person Shareholder / Partner and Description of the Organization (Not Mandatory) can be entered.

When Add button is clicked in Real Person Shareholder /Add Partner section, TR Identity Number – Identity Card Serial and Number are entered for Turkish citizens from the screen opened. Access to the contact information is provided by pressing the Inquire button from KPS and Real Person Shareholder registration is completed with the Save button. In this way, for Shareholders; If the Joint Stock Company Sub-type is not a single shareholder, more than one entry can be made.

For foreign nationals, Foreigner Shareholder Registration transactions are made by using the options with Passport No and Blue Card/Foreigner Identity No.

In order to add the Legal Person Shareholder or Partner to the legal persons registered in the MERSİS application through the system; MERSİS No, Trade Registry / File No, Title or any of the Country fields are entered and queried with the Search Company button and the person to be added as the Legal Person Shareholder / Partner is selected from the data to be listed with the + button and registered in the system.

If Joint Stock Company Shareholders, Business Name is available or reserved from the Title menu, the system will give a warning. If there is a description of the title, it can be saved in the system. Address information is accessed via UAVT data with Add/Change button. Organization address is entered. This menu contains Address information.

Purpose and subject, purpose subject of the company to be established is added through this menu. This transaction and the record of the transaction are made and recorded through the Add / Edit button.

NACE Code. It is a reference source for the production and publication of statistics on its economic activities in Europe. According to what activities they perform NACE coding, businesses are given a 6-digit code. Within the scope of EU harmonization studies in Turkey, the Nace code application has also started to be used.

Determination of NACE Code

The activity code of the chamber member and accordingly the occupational group are determined according to the declaration of the financial advisor during the establishment. In the following years, the highest turnover of the member from the activities carried out in the previous year will be updated according to the declaration given to the Ministry of Finance by the financial advisor.

The Capital menu contains the buttons whether the total capital (TL) is established by accepting the registered capital system and whether you want to divide the Capital into Groups.

Registered Capital Disclosure:

Description of Registered Capital in the system by Registered Capital Entry. The registered capital description appears with the Add/Edit Button.

Share Menu and Operations. Shareholder share distribution transactions should be made within the scope of the capital information entered. In this context, transactions are made on the Share page. On the page that opens, company shareholders (Real-Legal-Foreign Legal) are seen. The Capital Information Entry dialog is displayed with the Make Distribution button seen in the relevant line in the shareholders field. In the said dialogue, Total Capital, Cash Capital, Number of Registered Shares, Number of Bearer Shares, Number of Shareholder Preferred Shares, Number of Shareholder Preferred Shares, Paid-in Capital, If the Shareholder has the same Capital, the entry is made as in- kind capital sample.

Share group information entry for shareholders is made through the ” Make Share Group Distribution ” button. In the opened dialogue, the name of the capital share group, the number of registered shares, the number of bearer shares, the number of privileged shares (if available in the share group). Entries are made according to the information in the dialogue and the transaction isrecorded. Share Menu operations are completed.

Company Time information. On the page opened through the Company Time menu, click the Add/Edit button to enter the time information from the dialog opened and register. If the company is to be established indefinitely, you need to check the “indefinitely” box.

Board of Directors/Authorities Menu:

Board of Directors information should be entered for joint stock company establishments. Press the Authorized button of the Board of Directors. Enter the number of members of the Board of Directors and the duration of the Board of Directors by clicking the Edit number of members and duration information button on the page that opens. In the field that determines the number of members, one of the options of at least the number of members, the number of full members and at least 1 member is selected.

Shareholders are added to the Board of Directors as members by clicking the Add member button. Natural person, Legal person and Foreign Legal person.

Administration and Representation Menu of the Company. Information about the Company Administration and Representation is automatically entered by the system in the Company Administration and Representation Menu. Edit can be done on the text via Add Edit button.

General Assembly Menu:

General Assembly information is automatically entered by the system in the General Assembly menu. Edit can be done on the text via Add Edit button. Company Ad Details are automatically brought in the Ad menu. Edit can be done on the text with the Add Edit button. Enter the Company Account period information in the Account Period menu. Click Add/Edit button and check the Special Account Period box. In the profit-loss menu, the company profit-loss information is automatically brought. In the reserve fund menu, the reserve fund information of the company is automatically displayed.

Documents are only uploaded in PDF format and documents that do not exceed 5 MB in size can be uploaded. Documents of different types and exceeding 5 MB in size are prevented from being uploaded by the system. The document upload process is terminated by pressing the browse button and transferred to the system with the upload button.

When Tax Number button is clicked, Potential tax number retrieval screen will be opened. The tax number to be determined by the system is brought to the screen by pressing the Get Potential Tax Number button. Although the potential tax number could not be obtained, or in order to enter the manually received tax number, the system has also allowed manual entry.

Process operations

In the next stage, the process selection process is performed. TRD Process – Notary Process – E Signature Process, (selections will change according to company types.) In the process selection, the authorities are displayed and if the contract will be signed with e signature, E signature procedures are completed and the next stage is proceeded.

Submitting transactions for request registration approval At this stage, the request is sent to the approval of the trade registry directorate with the submit for approval button or to the approval of the organization according to the company name.

Do you want Paid Pre-Check on request? By clicking on the box, the request can be sent for pre- checking before. Pricing messages are shown depending on TRDs as information messages.

Do you want a paid pre-check? By clicking on the box, the request can be sent for pre-checking before. Pricing messages are shown depending on TRDs as information messages.

THE CRIME OF ENTERING THE INFORMATION SYSTEM

Today with effect of technological progress, most of our important information’s stored at our computer systems. Because of this progress, security of this computer system much important than it was in past. Although certain measures are taken for the security of these channels and our privacy, these measures are not sufficient from time to time. This security problem makes IT law important nowadays.

There are some arrangements, for the uninterrupted continuation of the information system we have developed and protect privacy of IT systems which was build for job or haveseparate way of usage, In the Turkish Penal Code No. 5237, Regulation of Broadcasts on the Internet No. 5651 and Law on Combating Crimes Committed by This Broadcasts.

In addition, there are norms related to the IT law legislation in various laws. Besides all this regulations people using the information system want to feel themselves in safety by several ways. Foremost among these methods are methods such as frequently renewing the password, not using unsafe websites, and anonymizing the user identity by using a proxy. And we can count methods like Firewall or dealing with cyber security company as a more professional method. But still these methods not always can stop professional hackers.

Hackers are people who enter our information system without our consent and sometimes steal our information, lock or change our system or make it unusable. Hackers may have targeted person individually or person may have been targeted in a mass hacking process and persons information may have been stolen. At this point data at information system may be stollen or privacy may be in danger. The crime and sanction related to this situation are regulated in Article 243 of the Turkish Penal Code.

Article 243 of Turkish Criminal Code No. 5237

(1) Anyone who illegally enters or remains in the whole or part of an information system is sentenced to imprisonment of up to one year or a judicial fine.

(2) If the acts defined in the above paragraph are committed about the systems that can be used for a price, the punishment to be imposed is reduced by half.

(3) If the data contained in the system is destroyed or changed due to this act, a prison sentence of six months to two years is imposed.

(4) A person who unlawfully monitors data transmissions within an information system or between information systems, without entering the system, through technical means, is sentenced to imprisonment from one year up to three years.

Material Elements: Entering/infiltrating the information system or staying there for a while without permission/illegally

Moral Element: İntent Period of Limitation: 8 years, (6-month statute of limitations due to complaint is not applied.)

In addition to the elements listed above regarding this crime, there should be no reasons for compliance with law. For example, consent of the person is a compliance with law. For this crime to occur, an information system must be hacked, as the informatics world puts it. This entering the system should be without permission/unlawful and with intent.

The point which discussed about this is crime is if someone instantly infiltrated the system but not staid there, is crime committed or not? Some jurists think that instant infiltrations will not be the subject of this crime. At this point we can say that when we look at justification of this clause, we can see that instant infiltrations also will constitute this crime no matter how long criminal stayed there; ‘In the first paragraph of the article, illegally entering or staying in the whole or part of an information system has identified as a crime. It does not matter whether the person who entered the system illegally acted to obtain certain data or not. The fact that the system has been entered unfairly and deliberately is sufficient for the crime to occur.’

[Turkish Criminal Code 243 Justification (in Turkish)

https://mevzuat.tbmm.gov.tr/mevzuat/faces/maddedetaylari?psira=18779]

Another point of discussion, will attempt occur for this crime or not? We think that provision of attempt regarding this crime can be applied. Because if person want to enter the information system but can not because of the dynamics of the informatics world and because of this did not fully commit the crime. Then person should be judged because of the attempt to Turkish Criminal Code clause 243.

At the stage of complaint to the prosecution first we should identify the identity of hackers. This determination is provided by the service providers through the IP number and address information. But sometimes they don’t share this IP number and address information. In such cases, unfortunately, the desired results legally may not be obtained.

On the other hand, considering the importance of information systems nowadays and its relevance to the privacy of the individual, we can easily state that the sanctions stipulated in the law regarding this crime are insufficient. In this respect, we argue that cybercrimes and sanctions should be reorganized in a more comprehensive way.

Legal Intern Haldun Barış

Bibliography

1- Turkish Criminal Code article 243 law’s preamble

https://mevzuat.tbmm.gov.tr/mevzuat/faces/maddedetaylari?psira=18779

2- KARAKEHYA, Hakan, TÜRK CEZA KANUNU’NDA BİLİŞİM SİSTEMİNE GİRME SUÇU, Turkey Bar Association Magazine, http://tbbdergisi.barobirlik.org.tr/m2009-81-498

3- BİLİŞİM SİSTEMİNE GİRME SUÇU NEDİR? (TCK 243), https:/barandogan.av.tr/blog/ceza-hukuku/bilisim-sistemine-girme-sucu-cezasi-nedir.html

4- BİLİŞİM SİSTEMİNE GİRME SUÇU TCK 243, https://mihci.av.tr/bilisim-sistemine-girme sucu/

Matters That Need To Be Considered In Contracts Are As Follows

Matters that need to be considered in contracts;

Identification of the Parties in the Contract

This topic may seem easy in first look but in practice lots of mistakes are made about this. If the parties of the contract are natural persons, T.C. identify number, their contacts and copy of their identity should be added to the contract. On the other hand, if parties of the contract are legal entity; copy of authorized signatures list, MERSIS number, tax register and trade register numbers, contact information`s, tax plate should be added to the contract.

If the parties of the contract are ordinary share than we should write the participants of the ordinary share one by one. Because ordinary shape does not have legal entity, so parties of the contract not the legal ordinary share but the partners who create a partnership. One more partnership which do not have any legal entity is community of heirs.

So, if at least one party of the contract is community share we should also print name of participants one by one.

Research of Power of Attorney

Within the commercial companies, there are people who represent them and hold the signing authority on behalf the company. It should be checked who the representative of the commercial company which is a party to the contract , and a circular of signature must be requested from the person in question. Signature circular is a certificate of representation. The important points which we should double check on the signature circular is company giving the authority to represent, authorized person for signature, scope of authority and validity period.

Signature

We can divide contracts in two groups contracts that imposes obligations on both parties and unilateral contracts. For example, trade contract impose obligation to pay on the one side and obligation to give the goods to the other. And we can exemplify unilateral contracts with deed of gift. So, in this case we should first identify with which group of contracts we deal with. If the contract in question is a unilateral contract than only signature of the obliged is enough. But if contract in question imposes obligations on both parties, we should have signs of both sides on the contract. As a rule, signature should be made by hand, but it also can be an electronic signature. Electronic signature, cannot be used in legal transactions subject to official form or a special ceremony, guarantee contracts, receipts, warrants, issuance and endorsement of bills of exchange.

Definitions in Contracts

Sometimes we see that some concepts are specifically defined in contracts. When the contract is examined by a third party, it can be easily seen that the parties have agreed on a definition with a common will. Sometimes the concepts put into contracts can be used outside of their general meanings.

Subject of the Contract

In this topic firstly we should have a word about legal characteristic. Legal characteristic is the criterion taken as a basis when determining which legal rules will be applied to the legal relationship in question. The subject of the contract is important in terms of determining the legal characteristic of the contract. In the subject part of the contract, the main acts undertaken by the parties should be explained. For example, in trade contract two main obligations is make the payment and supply the goods.

Debts of the Parties

Of course the basic principle in contracts is freedom of contract. Everyone is free to determine the party, content and conditions of the contract. But a mistake made while determining the debts can invalidate the contract. Firstly contract can not be contrary to law, contarct which was made unlawfully invalid as a rule. And aslo debt of the creditor in contract should not be impossible. For example nobody can make a contract about buying

Van Gogh’s next painting. Because Van Gogh pasted away years ago there will not be the next painting so performance of the contract is certainly impossible and thats why contarct will be invalid. Also contract cannot be contrary to personal rights. Nobody can make a contract about working 24 hours a day, cause this contract contrary to persona rights even if parties will sign the contarct like this it will be invalid. And for last, contract can not be contrary to morals.

Interest Rates

In fact, we can define interest as the rental price of money. Considering the period in which the interest was born, we can divide it into two groups; default interests and principal interest. Principal interest is the interest paid during the deprivation of money by the creditor. Default interest is the interest that has fallen into default and started to accrue against the debtor when the performance is not fulfilled on time, despite the time for performance.

While default interest can be charged to principal interest, as a rule, default interest cannot be charged to default interest. There is exception for this rule in eightg article of Commercial Law of the Republic of Turkey.

Determination of Interest Rate in Commercial Business

Basic rules which stated in Comercial Law of Turkey Republic are; free determenation of interest rates in commercial business (article 8), implementation of the provisions of the relevant legislation on principal and default interest (article 9), considering the business regulated in the commercial code as commercial business even if it does not concern a commercial enterprise and considering all legal transactions and acts concerning a commercial enterprise as commercial business. İf one partie of the contract is consumer, in other words if consumer make a contract outside of his professional or commercial activity, even if other partie is trader this contract should be caunted as consumer affairs. Because of this in this kind of situation the articles of the Law on Consumer Protection are applied with priority.

Current Legislation Regarding Principal Interest Rate

If parties not specified rate of principal interest in contract, current rate which stated in certain code will applied. If principal interest rate will determine by the contract, rate can not be more than 50% than rate stated in Law on Statutory Interest and Default Interest in Turkey.

In commercial affairs, if the principal interest rate is not determined in the contract, the principal interest will still be applied as 9%, the periodic rates determined by the Central Bank regarding the advance interest are considered in the calculation. Whether the rate of principal interest not determined in the contract, parties can determine rate 13.5% mostly. Rate over than 13.5% will be invalid.

Current Legislation Regarding Default Interest Rate

Unless otherwise stated in the contract, for noncommercial business default interest will be 9%. Default interest rate which will be applied for commercial business, the interest rate applied by the Central Bank for advance interest is applied as 15.75% since 31.12.2021.

According to the Law on Statutory Interest and Default Interest, if Central Bank make change in short-term advance interest middle of the year and difference between old rate and new rate at least five-point new rate will apply immediately. If difference between rates less than five points than old rate will apply until end of the year

Limit on Default Interest

If default interest rate does not specify in contract then rate which stated in Law on Statutory Interest and Default Interest in Republic of Turkey will be applied. The annual default interest rate to be determined in the contract cannot exceed one hundred percent of the annual interest rate determined in the legislation.

If we talk about the default interest in non-commercial business, if there is no such clause in the contract, the default interest is calculated as 9% per annum. If parties stated annual default interest rate in contract, this rate can not be over 18%. If parties stated default interest rate more than 18%, part which more than 18% will be invalid.

Who Will Pay Taxes and Other Expenses?

According to Stamp Tax Law 3 Clause, the signer of the contract is responsible for stamp duty. If stamp tax not paid then person who presented the contract to authorities for any process responsible for stamp tax. If the contract is changed, and the contract value increases, the increased amount is also subject to tax at the same rate. If contract will convey, then tax is charged at the rate of 4/1 of the tax collected. And finally, in case of extension of the contract, the same rate of tax is charged.

What Should Be Considered While Determining Penal Clause?

The penal clause is a condition that the parties can add to the contract in order to pay a certain amount of money to the creditor as a result of the debtor’s failure to fulfill or fail to fulfill the obligation undertaken. If judge find the penal clause overrated than he may reduce the price which stated in penal clause. The existence of the damage not a condition for take a payment based on penal clause.

Turkish Code of Obligations at clause 179 stated that if there is no proper performance, the performance of the debt or the penalty may be demanded. This rule is not mandatory so if there is clause at contract penalty and performance of the debt may be demanded at the same time.

Assoc. Prof. Dr. Atty.  Baharek SAHIT – Assoc. Prof. Dr. Atty.

Assoc. Prof. Dr. Atty.  Beharek SAHIT was born in 1986 in Khoy, West Azerbaijan Province, Iran. She completed her undergraduate and master’s degree in the Department of Law at Mazandaran State University, Iran. In 2012, she received her Ph.D.  in Criminal and Criminological Law from Tehran Science and Research University. In 2016, she defended her doctoral thesis and finished her doctorate with a degree. Since 2014, she has been working as a faculty member at the Department of Law at the Azad University of Urmia. She speaks English, Persian, Turkish and Azerbaijani Turkish at an advanced level. She has several scientific articles published in different languages. She is a registered lawyer of the Union of Bar Associations of East Azerbaijan Province of Iran.

Deniz Mete ÖZCAN- Intern

    He was born in 1999 in the city of Aktobe in the west of Kazakhstan, where he continued his education until 2009. While continuing his undergraduate program, he studied at Universidade Nova de Lisboa, Portugal for a while within the scope of Erasmus program. Deniz Mete OZCAN, who continues his academic life at Hacettepe Faculty of Law, speaks Russian, English and Turkish at an advanced level.

Ali Aksoz- Tax and Finance Specialist

Ali Aksoz was born in 1968. In 1991 he graduated from the Faculty of Economics of Anatolian University. From 1998 to 2015 he worked as a personal financial consultant in the company Audit. Ali Aksoz is a specialist in taxes and finance, has been providing his professional services as a sworn accountant since 2015.

Atty. Raşid Mirzayev – Chief Legal Consultant

Borned in Baku/Azerbaijan. İn 2017 gratueted from high school named by Academic Zarifa Aliyeva and in the same year started bachelor degree at Hacettepe University Law Faculty and graduated at 2021. While he continue his bachelor he made internship at prosecution, after sucessfully graduation from his bachelor degree he started his master’s degree at Ankara University Law faculty. Continues magistracy at the Department of Public Law of Ankara University at the Department of Criminal and Criminal Procedure Law. Participated in many organizations and has certificates in many semposiums and organizations such as Model United Nations and semposium about children’s rights. He knows at advanced level Russian, English, Turkish, Azerbaijani languages and know French language at begginer level.

FIELD OF ACTIVITY

-Criminal Law

-Criminal Defence

-Rights of a Foreigner

-Commercial Law-Corporate Law

-Labor Law

-Consumer Rights

-Family and Inheritance Law

Atty. Haldun Barıs               

Haldun Barıs, born in 1996 in Elazıg. At 2014 he graduated from Kaya Karakaya science high school and at 2020 he gratuated from Ankara University Law Faculty. At his bachelor period he attended to many think-tank organization courses and coordinate many projects. At 2019 he became first at essay contest coordinated by Liberal Thought Community and becama third at Kazım Berzeg essay contest coordinated by the same community. He prepared and organized the PR project for Taiwan Economy and Culture Mission. His main areas of interest are commercial law, labor law, compliance process, IT law, administrative law, citizenship law, arbitration and mediation practices, PR and lobbying. He is fluent in English and he knows Persian at a beginner level.

Feride Yabanci

Born in 1997 Hatay, Turkey Feride spent first 7 years of her life in Turkey and afterwards settled in Saudi Arabia with her family. There she finished International Turkish High School in Dammam. In 2015 she enrolled in Ankara University Law Faculty. Throughout her college years she worked at the Women’s Health Problems Centre organised by Hacettepe University and aided arabic women. She is fluent in Arabic and Turkish.