02 Jun Sending a Enforcement Notice To a Company Partner
T.C. Supreme Court 12. Department of law 2016/1954 E., 2016/15638 K., Date 02.06.2016
* The company partner may be sent an 89/1 notice of foreclosure / a case law change is made with the Supreme Court (cancellation of foreclosure notices – the department has previously issued a notice of foreclosure. Md. 89 In Terms Of Company Partner’s 3 In Terms Of Company. The company’s rights and receivables due to execution follow-up made about the company in the capacity of debtor by changing the case law/the person is not accepted / the Company Partner for sequestration. Md. A Lien Notice May Be Sent In Accordance With 89)
* 3 OF THE COMPANY PARTNER IN RESPECT OF THE DEBTOR COMPANY. Person to be counted (cancellation of lien notices – Company Partner of the Department in terms of debtor company 3. HGK issued on 11.05.2016 while considering that the company partner may not be sent a lien notice of 89/1 since the person cannot be counted.3 In Respect Of The Debtor Company Of The Company Partner According To The Changing Case Law In Accordance With The Principle Number 2014/12-1078. Person To Be Counted/Partner Of The Company Is In Accordance With The Law To Send A Lien Notice To Complainants 89/1)
* Seizure of the rights and receivables of the company (due to execution follow-up made about the company as Debtor, the debtor is the partner of the company for the seizure of the rights and receivables of the company. Md. A lien notice may be sent in accordance with 89-the Company Partner’s first. 3 In Terms Of The Company In Md 89 Application. Person To Be Counted)
* ENFORCEMENT AND BANKRUPTCY LAW MD. Company partner in 89 application (3 in terms of company. Person to be considered-due to the execution of the company in the capacity of debtor, there is no direction in the sending of a lien notice to the Company Partner for the seizure of the rights and receivables of the debtor company which does not comply with the law.)
2004 / m. 89
6102 / m. 124, 125, 128
Summary: in the decision of the General Assembly of law, 2014/12-1078, 2016/1600 dated 11.05.2016, the partner of the company is the first.nun 89. in the application of Article 3 in terms of the company.the Company shall be entitled to the company partner for the seizure of the rights and receivables of the debtor company due to the execution follow-up made about the company in the capacity of debtor.nun 89. it has been agreed that a notice of foreclosure may be sent under the clause.
The apartment, previously the first.nun 89. if the partner of the company is not accepted as a third party in terms of its article, the principle adopted by the General Assembly of law has been changed in accordance with the aforementioned decision.
In that case, due to the follow-up of the execution of the company, the complainant who is the partner of the company is the first.nun 89. since there is no violation of the law in sending a notice of foreclosure in accordance with the article, the court’s provision for the acceptance of the complaint rather than rejection is inconclusive.
Case: after hearing the report prepared by the court judge for the case file and reading and reviewing all the documents in the file, it was discussed and considered as necessary for the work. :
Decision: in the application made by the complainant to the Enforcement Court, the complainant’s agent, in the follow-up against the debtor E… A… Otelcilik Turizm Ticaret Limited Company, in which the complainant is a partner, initiated the follow-up follow-up proceedings against the complainant of the company under the lease agreement about the debtor’s company.89. the court decided to accept the complaint, claiming that the company’s shareholders could not be considered as third parties in terms of the debtor company and that the decision on sending the foreclosure notices dated 02.03.2015 should be lifted.
Iik’s 89. if a third party confiscates a movable property of the debtor or a right of claim or other claim which does not belong to the bearer or which is not based on a deed capable of endorsement, according to the article, the executive officer; it informs the debtor that he can pay his debt only to the execution department and that the payment made to the follow-up debtor is not valid or that the third person who holds the property can no longer deliver the movable property only to the execution department, not to give the goods to the follow-up debtor, otherwise he will have to pay the The provisions of Paragraph 2, 3 and 4 shall also be notified to the third party in this lien notice.
No. 124 of TCC No. 6102. Article 125 of the same law, in which limited liability companies are capital companies. in Article 128 of this law, commercial companies have legal personality and can benefit from all rights and assume debts within the framework of Article 48 of the Turkish Civil Code. in the article, it is stipulated that each partner is owed against the company due to the capital he is committed to put in by the company contract, which is arranged according to the procedure and signed.
E … A … Otelcilik Turizm Ticaret Limited Liability Company issued on 02.03.2015 for 3. in the examination of the 89/1 lien notice sent to the complainants as a person, it is reported that “it has been decided to confiscate the rights and receivables of the debtor company born and born with you and the amount you have to pay to the company that you have pledged to pay”. As a rule, all kinds of goods and rights of the debtor can be confiscated. For non-sequestration, there must be clear provision in the enforcement and Bankruptcy Law or in the special law. In other words, in order to be accepted that a property or right cannot be confiscated, it is necessary to have a clear law provision in this regard or to have a legal regulation preventing the sale and transfer of that property or right in the sense of material law. The partner of the company has a personality separate from the legal entity of the company to which he is a partner, since he is a real person in the sense of TMK according to the Company 3. it counts as a person. In accordance with the above-mentioned articles of the Turkish commercial code, the shareholders of the company are indebted to the company because of the capital they are committed to put in the company contract and because there is no legal regulation preventing the debtor company from foreclosing the capital receivables of the company’s partner, it is possible to foreclose the capital receivables. Plus, the indebted company, 3. other than the debt of capital to the partner of the company, it is entirely possible to be cashed out by private law, and it is not possible for the person to be cashed out at the 89th Annual Meeting of the OIC. there is no doubt that there may be other rights and receivables within the scope of the article which may be confiscated.
Our department; Company Partner, 3 in terms of indebted company. the Company Partner shall not be counted as a person, while the Company Partner shall not be sent a lien notice of 89/1, in accordance with the case law no.2014/12-1078 of the HGK issued on 11.05.2016 and according to the changing case law of our department in the face of the above mentioned cases; partner of the company, debtor company in terms of 3. since the company partner will be considered a person, there is no direction that does not comply with the law in sending a lien notice to the complainants and the court should decide on the dismissal of the complaint, the provision for the acceptance of the complaint is not accurate.
Conclusion: the acceptance of the creditor’s appeals and the court’s decision, for reasons written above, are 366 of the ICJ and 428 of the Humk. it was decided unanimously on 02.06.2016 to have the way to correct the decision within 10 days from the notification of the decree.
No Comments