Akademik Veri Yönetim Sistemi
ISTANBUL HUKUK MECMUASI, cilt.77, sa.1, ss.49-70, 2019 (ESCI)
The right of leave of a shareholder is regulated from one perspective both in Capital Market Law (CML) art. 24 and Turkish Commercial Code (TCC) art. 202/2, hence it is still an open discussion whether the shareholder, who has used the right of leave regulated in CML art. 24, could also have a demand arising from TCC art. 202/2 or not. It should be stated that, a shareholder, who has used the right of leave arising from CML art. 24, can also demand a recalculation of the seperation fee according to TCC art. 202/2, undoubtably by providing the other terms of TCC art. 202/2. This demand can only contain the recalculation of the seperation fee, in other words the shareholder cannot exercise the right of leave according to TCC art. 202/2, by using the right of demand according to CML art. 24 as he/she is no longer a shareholder. Even the TCC art. 202/2 itself states that the aforementioned regulation is also applicable to public companies as well, hence TCC art. 202/2 and CML art. 24 can be applied cummulatively. CML art. 27 is also another sign of this result, as it forbids TCC art. 208 to be applied to public companies, when CML art. 24 does not regulate the same for TCC art. 202/2. Capital Market Board (CMB) has no administrative discretion whether the separation fee calculated in accordance to CML art. 24 reflects the real value of the shares or not; this has to be clarified by courts on demand of the shareholder.