Free Essay

I Have No, Sorry

In: Social Issues

Submitted By lingoru
Words 528
Pages 3
LİMİTED ŞİRKETİN MAHKEME KARARIYLA SONA ERMESİ NASILDIR?
Ortaklardan birinin talebi üzerine, haklı sebeplerin varlığı halinde mahkeme şirketin feshine karar verebilir. (TTK md. 549/1-4) Bu hüküm sayesinde limited şirketin sözleşmeyle belirlenmiş süresi dolmadan önce de ortaklara şirketi sona erdirme imkanı tanınmıştır.
Böyle bir dava açılması halinde şirketin feshini istemeyen ve haklı sebepleri olan diğer ortaklar, davacı ortağın şirketten çıkarılmasını karşı dava ile talep edebilirler.(TTK md. 551/3) Zaten eğer ortaklardan biri, sermaye payının karşılığını alarak şirketten ayrılabiliyorsa; şirketin sona erdirilmesini isteme konusunda objektif bir çıkarı olmayacaktır.
Bahsi geçen duruma dair emsal Yargıtay Kararları da aynı yöndedir. ‘.......Davacı, Davalı şirket ortağı tutuklandığı ve bu sebeple mali-idari işlerin aksadığı haklı sebebiyle şirketin feshini talep etmiştir. Ancak bahsedilen haklı fesih sebebinin çoğu davalının tutuklanması nedeniyle şahsından kaynaklandığı için, bu durum şirketin feshi için objektif bir çıkar oluşturmayacağından davalının ortaklıktan çıkarılması yerinde olacaktır....
‘....... Haklı sebeplere dayalı olarak şirketten çıkma veya şirketin feshinin talep edildiği durumlarda talepçinin iyi niyet kurallarına riayet etmek kaydıyla bu haklarını kullanabilecekleri.....
Kaldı ki yukarıda bahsedilen içtihatlar ışığında, Türk Ticaret Kanunu Tasarısına da mehaz kanundaki hükme ek olarak; ‘haklı sebeplerle şirketin feshinin istendiği durumlarda mahkeme talep yerine davacı ortağa payının gerçek değerinin ödenmesine ve şirketten çıkarılmasına veya duruma uygun düşecek kabul edilebilir diğer bir çözüme hükmedebilir.’ ibaresi eklenmiştir.( TTKT md. 636/3) Böylece uygulama yasaya yansımıştır.
Kanunumuzda limited şirketi sona erdirecek haklı sebebin tanımı veya nelerin haklı sebep sayılacağı belirtilmemiştir. Ancak TTK md.187’de kollektif şirketler açısından haklı sebep tanımı yapılmış ve haklı sebeplere örnekler verilmiştir. Kanundaki bu hükümden limited şirketler için de yararlanılabilir. Bundan yola çıkarak Haklı sebep; “ Ortakların bir araya gelmesini sağlayan maddi ve kişisel birliktelikleri ortadan kaldıran, böylece şirketin amacına ulaşmasını olanaksız kılan ya da ciddi biçimde güçleştiren veya bu amacı tehlikeye sokan nedenlerdir.” Ortağın birinin şahsında beliren subjektif nedenler ise, haklı sebeple sona erme nedeni değil daha ziyade çıkarma sebebi olmalıdır.
Haklı sebepler, ortaklar arasındaki ilişkilerden kaynaklanabileceği gibi, bir ortak ile şirket arasındaki ilişkiden veya bizzat şirketin durumundan da kaynaklanabilir. Haklı sebeple şirketin feshinin mahkemeden istenebileceği bazı hallere örnek; * Limited şirket faaliyetinin tamamen durmuş olması. * Ortaklar arasındaki ciddi anlaşmazlıklar. * Ortağın esas sermaye borcunu ödemede temerrüdü. * Şirketin kuruluş gayesinin gerçekleştirmesine imkan kalmaması. * Şirketin devamlı olarak kar sağlayamaması. * Ortakların rekabet yasağını ihlal etmeleri. * Ortaklar arasındaki güven ilişkisinin sona ermesi. * Şirket yönetimindeki yolsuzluklar. * Şirket kararlarının ve sözleşmenin sürekli ihlali.
Haklı sebeplerin bulunması halinde her ortağın mahkemeye başvurarak şirketin sona erdirilmesini talep hakkı vardır. Ancak fesih sebebini meydana getiren kusurlu şirket ortağının, bu davayı açma hakkı yoktur. Mahkeme, davacı ortağın kusurlu olduğu sonucuna varırsa, haklı sebebe dayanarak şirketin feshedilmesi talebini reddetmelidir. Ancak, her iki tarafın ortak kusurlarından haklı sebep meydana gelmişse, bu hâl şirketin haklı nedenle fesih sebebi olarak kabul edilmelidir.
Haklı sebeple şirketin feshi talebi davasının açılabilmesi için belli bir süre yoktur. Haklı sebep devam ettiği sürece fesih davası açılabilir. Limited şirketlerdeki haklı sebeple şirketin feshini talep etme davasında, şirketin tüm ortaklarının davada, davacı veya davalı olarak gösterilmesi gerekir.
Bu şekilde bir dava açıldıktan sonra; davacı ortağın iddialarının gerçek olup olmadığını, şirketin son bulması için haklı bir sebep olup olmadığını mahkeme kendisi takdir eder. Hakim davacının sebeplerinin somut ve gerçek olduğu sonucuna varırsa şirketin feshine karar verir. Şirket mahkeme kararının kesinleştiği tarihte son bulur.…...

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