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Date
2008
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Sosyal Bilimler Enstitüsü
Abstract
It is constituted as a direct bankruptcy cause in both Enforcement and Bankruptcy Law and Turkish Commercial Code if the assets of Capital Stock Companies and Cooperatives cannot cover their debts (insolvency). In the case of insolvency suspicion of a Capital Stock Company or a Cooperative; board of directors, the liquidator or any creditor may inform the court of insolvency. This notice is a means for the court to act. Therefore the major addressee of the regulations regarding this notice of insolvency is the judge. If the judge determines the insolvency after receiving the notice, he is obliged to decree bankruptcy even if the notice doesn?t contain a request for bankruptcy.Hearing of an insolvency notice constitutes a special kind of contentious proceeding in civil procedure. However in the case of an insolvency notice, there need not be two parties as needed in conventional lawsuits. Also, the request containing the notice is not expected to include all the mandatory elements of a regular complaint. Therefore the insolvency notice hearing is not a lawsuit per se.Insolvency notice hearing is a proceeding to determine whether the cause for bankruptcy has risen or not. Since the postponement of bankruptcy request is brought up during the insolvency notice hearing, the investigation regarding the postponement is a part of, but partially independent from, the proceedings of insolvency. If it is determined that the financial situation of the company or the cooperative may be improved at the end of the proceedings, the court decrees the postponement of bankruptcy. But this decree doesn?t conclude the insolvency hearing. With this decree, faith of the bankruptcy is subjected to the condition of whether the financial situation may be improved by the end of the postponement period. Therefore this decree is an interim conclusive decision. Because it is a conclusive decision, it may be subject to an appeal on its own.The court issuing the decree also takes necessary measures to protect the assets of the debtor. It also appoints a trustee to manage and oversee transactions of the debtor. Trustee informs the court with report regarding the financial situation of the company during the postponement period. Trustee is considered as a public official whilst on duty. Furthermore his actions may be subject to complaints to Commercial Courts.The legislator has also adopted some measures in order to protect the assets of the debtor, safeguard the interest of the creditors and ensure the success of the postponement during the period. In this context, statute of limitations and other time limits don?t take effect during this period. All execution and bankruptcy procedures, including public debts, become suspended, and no new ones may be initiated. However as an exception, execution processes for credits guaranteed by pledge, mortgage or commercial enterprise pledge may be carried out. But for these processes, pledged item may not be sold and no protective measure may be requested. Also the imprimis special creditors determined in Enforcement and Bankruptcy Law article 206, may carry on their proceedings.In the end of the postponement period, if the assets of the company or the cooperative exceeds their debts, and the danger of insolvency is not foreseeable for the short term, the financial situation of the company or cooperative is considered improved. In such case, court lifts the postponement of bankruptcy period and decrees that bankruptcy is denied. If it is determined that the financial situation cannot be improved during or in the end of the period court lifts the postponement period and decrees bankruptcy.
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Sarmaye Şirketi, Borca Bataklık