WHAT IS THE REVIVAL OF COMMERCIAL COMPANIES?
Joint-stock companies, limited liability companies, and cooperatives are the most common companies in Turkish Law and the business life of our country. Such companies have the legal capacity as long as their legal personality continues and when their legal personality ends, their legal capacity also terminates. Even in case the legal personality of the companies ends, in some instances, the legal personality can be revived by reviving the companies and legal transactions against the company can be continued. Such restoration of this legal personality is called the revival of the company and must be carried out through litigation.
CONDITIONS OF THE REVIVAL OF COMMERCIAL COMPANIES
The conditions concerning the revival of companies are regulated in the Turkish Commercial Code. Accordingly, in order to demand the revival of a company, ıt must not be passed five years after the deregistration of the company from the Trade Registry and people who demand the revival of the company must be creditors of the company or have an interest in the revival of the company. Besides, the company’s liquidator or the board can also file a revival lawsuit. The five-year term of litigation is a prescription period and the court will review the existence of such a condition on its own motion. After such conditions are provided, a lawsuit must be filed in the commercial court of first instance in the location where the company whose revival is demanded is registered. In the event that there is no commercial court of first instance in such location, the lawsuit must be filed in the civil court of first instance in the capacity of a commercial court of first instance.
PARTIES OF THE REVIVAL LAWSUIT
Parties of the revival lawsuit vary depending on how the deregistration of the company is incurred. First of all, the plaintiff can be people who are creditors from the company or cooperative, or who have an interest in the revival of the company, as defined in the 15th paragraph of the Provisional Article 7 of the Turkish Commercial Code. The defendant party differs according to the manner of company deregistration. If the company’s trade registry record has been deleted ex officio based on one of the reasons for cancellation stipulated in the Turkish Commercial Code, the Trade Registry Office where the company is registered should be shown as the adversary in this lawsuit. However, in the event that the company was deleted as a result of the liquidation, the liquidator or the liquidation board should be shown as the adversary together with the Trade Registry Office. In case the revival lawsuit is filed without showing the liquidator or the board as the adversary in the lawsuit of a company deleted as a result of liquidation, the court allows time in order for the plaintiff to file a lawsuit against such person or board. The Trade Registry Office is the legal adversary in the revival lawsuit as we stated. Therefore, it is not responsible for the cost of proceedings and attorney fees.
CONSEQUENCES OF THE REVIVAL LAWSUIT
In case the revival lawsuit is accepted, the company is re-registered in the Trade Registry. However, this registration does not mean that the company is fully operating. It has consequences for the person or persons demanding the revival of the company and is limited to subject matter of the request. For instance, in action for determination of period of employment filed by a former employee of the company, If the company has been revived to ensure the formation of a party, the company is deleted from the Trade Registry again when the decision made as a result of this lawsuit becomes final. It may be decided to revive the company as a result of the revival lawsuit filed by the creditor of the company. In this case, the company will be deleted from the Trade Registry following the collection of the debt is concluded.
In conclusion, in order to take action against a company whose registration has been deleted from the trade registry, this company must first be revived. A revival lawsuit can be filed by the creditors of the company, people who have legal interests, the liquidator, or liquidation the board. The lawsuit can be filed within five years from the deregistration of the company. The lawsuit only bears consequences limited to the plaintiff and subject matter of the request. After the completion of the transactions, which provided justification in the lawsuit, the company’s registry record will be deleted again.
Şeref Şen, Attorney At Law