ARTICLE
24 April 2024

Criminal Liability Of Company Managers

MT
Mustafa Tirtir Law Firm

Contributor

Mustafa Tırtır Law Firm has 24 years of experience. It was founded by Atty. Mustafa Tırtır. Our Law Firm is a unique firm that works with criminal cases. We provide professional service to our local and foreign clients in the field of criminal law with a distinguished team.
Company directors are legally responsible persons of limited partnerships, collectives, limited liability, cooperatives and joint stock companies listed in Article 136 of the Turkish Commercial Code.
Turkey Criminal Law

Company directors are legally responsible persons of limited partnerships, collectives, limited liability, cooperatives and joint stock companies listed in Article 136 of the Turkish Commercial Code. In some types of companies, the authority of management, representation and supervision belongs to certain bodies. The concept of organ, on the other hand, is the persons who legally constitute the legal entity of the legal entity and enable the legal entity to participate in legal life. Transactions and actions of the persons forming the body may be binding on the legal entity.

In the event that a crime is committed during the management or execution of transactions of companies with legal personality, according to Article 20 of the Turkish Penal Code, security measures stipulated in the law are applied instead of criminal sanctions against legal entities. In addition to this, the executives of the company may also have criminal liability.

According to the established jurisprudence of the Supreme Court; Not all board members have criminal liability. For example;

The decision of the 12th Penal Chamber of the Supreme Court No. 2014/2054 E. and 2015/3562 K.; "The defendants are the PARTNERS of the .... Ticaret Limited Şirketi, the company director of ...., who is the father of the other defendants in the company operating as a family business, the defendant ... deals with the foreign affairs and accounting of the company, ... The defendants' limited liability company Considering that they are the partner and responsible manager of the company and that ONLY BEING THE COMPANY PARTNER IS NOT SUFFICIENT FOR CRIMINAL RESPONSIBILITY, it is obligatory to determine and evaluate the legal status of the defendants according to the result by determining which defendant is at fault for what reason".

The decision of the 19th Penal Chamber of the Supreme Court No. 2015/2982 E. 2015/8334 K.; "... When there is more than one legal representative of legal entities, if the crime has not been committed in action and consensus, the responsibility belongs to the representative who knows the details of the crime and has a role in its formation, instead of the person responsible for the form, taking into account the weight and limits in the distribution of the power of representation depending on the principle of the individuality of the punishment. ... But in any case; the validity of the defense and fact that the legal representatives did not know the acts of the personnel at the time they were committed; The legal entity's field of activity in terms of business and location, communication density and possibilities, organizational form and structure, size scale, number of personnel, distribution of duties, business volume and capacity, possibility of acting independently, financial structure, assets, cash and bank availability, An evaluation should be made and a conclusion should be reached, taking into account factors such as its nature and subject." is in the form.

The decision of the 15th Penal Chamber of the Supreme Court, numbered 2014/3129 E. and 2016/8775 K.; "... In the event that the legal entity has more than one representative, the criminal responsibility will belong to the legal representative who knows the details and has a role in the formation of the crime, not the person responsible for the form, taking into account the weight and limits in the distribution of the power of representation, depending on the principle of the personality of the punishment, and that the defendant is the chairman of the board of directors. will not constitute evidence that he has participated in a crime on his own..."

According to the above-mentioned Supreme Court decisions, article 38 of our Constitution, and the principle of individuality of penalties regulated in article 20 of the TPC, the responsibility of the partner or manager who knows the details of the act and has a role in its formation, can be brought to bear, not all of the legal representatives. A member of the board of directors or even the chairman of the board of directors who does not actively participate in the activities subject to the crime, does not know the details, does not have a role in its formation, will not be penalized.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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