NEWSLETTER-2020-metin

45 COMMERCIAL LAW Shares Acquired by the Company and Stand of Shareholding Rights As mentioned, above, Article 389 of the TCC does not stipulate any condition on its own shares acquired by the company. In addition, it is explicitly stated in the preambles of the Article that the acquisition of shares by the company in accordance with the law is not critical in terms of the state of shareholding rights. Accordingly, in the event that the company acquires its own shares based on the exceptions specified in Article 382 of the TCC, it is even granted by an exemption from the conditions under Article 379, no exemption shall arise concerning the consequences foreseen under Article 389 (the legal position of the shares due to the acquisition) 3 . In this context, the regulation in question is not in the nature of exception of the company acquiring its own shares illegally. The pur- pose of regulation is evaluated in various aspects in the doctrine. One opinion argues that the aim of the regulation is to prevent the unbalanced deterioration of the balance of power between the board of directors and the general assembly as a result of the misuse of the rights over the shares acquired legally by the company managers 4 . Another view argues that the suspension of shareholding rights arising from the shares repurchased by the company, except for the acquisition of gratis shares arising from the shares repurchased by the company, is grounded on the impossibility of being a shareholder of its own. Accordingly, in order to gain the status of shareholding against a joint stock company, a third person is required to acquire the share. In the event that the company acquires its own shares, just like a third party, it is not possible to deem that the company is granted with the shareholding rights due to nature of the status of shareholding 5 . 3 Çapa , p. 108. 4 Çapa , p. 107. 5 Yıldırım, Ali Haydar : “Anonim Ortaklık Genel Kurul Kararları Aleyhine Toplantıda Hazır Bulunan Pay Sahibinin İptal Davası Açmasının Şartları ve Özel- likle Muhalefet Şerhi.” İnönü Üniversitesi Hukuk Fakültesi Dergisi, V. 7, No. 2, 2016, p. 383-430. DergiPark, http://dergipark.gov.tr/inuhfd/issue/22944/291308 .