Bankruptcy; It is the follow-up method that ensures that all the goods and receivables of the debtor, whose bankruptcy has been decided by the Commercial Court of First Instance within the framework of certain procedures because he has not paid his debt, are converted into money and that all known creditors are paid with this converted money.
PERSONS SUBJECT TO BANKRUPTCY
In order to be able to proceed through bankruptcy, the debtor must be one of the persons subject to bankruptcy listed in the law. Pursuant to Article 18 of the Turkish Commercial Code, the merchant is subject to bankruptcy for all his debts. The executive director cannot ex officio examine whether the debtor is subject to bankruptcy. The objection to whether the debtor is subject to bankruptcy can only be examined by the commercial court of first instance, which decides to remove the objection and handles the bankruptcy case. Likewise, the Commercial Court of First Instance should investigate and examine ex officio whether the debtor is subject to bankruptcy, even if no objection is made in this regard.
1-) Real Person Merchants
Anyone who operates a commercial enterprise, even partially, on his own behalf is a merchant. Traders are subject to bankruptcy due to all kinds of debts. Even if a real person has not actually started to operate, he can state that he has established and opened a commercial enterprise, newspaper, radio, etc. Even if he has declared it in ways, he will be considered a merchant and will be subject to bankruptcy. At the same time, persons such as notary publics, lawyers, judges, who violate a ban due to the nature of their profession or personal situation, or who operate a commercial enterprise without obtaining this permission or license, are also subject to bankruptcy.
2- Legal Entity Merchants
Commercial companies and Cooperatives: There is no difference whether a commercial company is a sole proprietorship or a capital company, in both cases the commercial company is subject to bankruptcy. However, since ordinary companies do not have legal personality, they are not subject to bankruptcy.
Associations Operating Commercial Businesses to Achieve Their Purpose: Although associations are defined as legal entities without commercial purposes, it can be found that associations also operate commercial enterprises. In such a case, in accordance with Article 16 of the TTK, the association operating a commercial enterprise will also be considered a merchant. However, public benefit associations (such as Kızılay) are not considered merchants and are not subject to bankruptcy.
Institutions established by public legal entities to be managed or operated commercially in accordance with the provisions of private law pursuant to the founding law are also considered merchants and are subject to bankruptcy. KİT’s and İSKİ are examples of this situation. However, the bankruptcy of public legal entities such as the state, province and municipality is not possible. Likewise, SGK is not subject to bankruptcy.
3- Those who are subject to bankruptcy pursuant to the TTK, although they are not merchants:
- Persons who act as partners on behalf of themselves or a company that does not exist legally, as if they have opened a commercial enterprise, are considered traders against bona fide third parties and are subject to bankruptcy. This matter is in TTK art. It is stated in 12/3 as follows; “Anyone who acts as a partner, as if he has opened a commercial enterprise, whether in his own name, for an ordinary company, or on behalf of another company that is not legally recognized by any means, shall be liable as a merchant against bona fide third parties.”
- Although the equipment subsidiary does not have a legal personality, according to TTK Art. 17, the provisions between the merchants are also applied for the equipment participation. For this reason, just like the merchants, the equipment subsidiary has been subject to bankruptcy. Likewise, TTK Art. 1084, it was decreed that the participation would be terminated with the filing of bankruptcy regarding the equipment subsidiary.
4- Persons Subject to Bankruptcy Pursuant to the Provisions of Special Laws, Even though they are not Merchant
- The merchant who leaves the trade continues to be subject to bankruptcy within one year from the announcement of the abandonment. The merchant, who has left the trade, must report this situation to the trade registry where he is registered within 15 days and make a goods declaration including his assets and liabilities. This situation is published and announced in the Trade Registry Gazette. The declaration of abandonment of trade is obligatory because the trader who does not declare that he has left the trade will continue to be a trader, and bankruptcy proceedings can always be filed against him.
- Partners of collective and commandit partnership companies are subject to bankruptcy due to company debts, even though they are not considered to be merchants due to their partnership title. In which cases the partners of the company will be subject to bankruptcy, is mentioned in TTK Art. 238/2 and 240. According to these provisions, if the debt is not paid despite the notification of the execution order to the company, the creditor may request the direct bankruptcy of the partners or some of the partners together with the company. In another situation, if the money is not deposited despite the deposit decision, the creditor may request the court to notify the shareholders or some of them of the warehouse decision and to decide on their bankruptcy together with the company if they do not fulfill the requirements.
- If the person subject to bankruptcy dies during the proceedings, the creditor can continue the bankruptcy proceedings against the estate. However, for this, the estate should not have been divided or subjected to official liquidation or an inheritance company should not have been established among the heirs. It is not possible to carry out the proceedings against the heirs. If the inheritance has been accepted, it can only be pursued through foreclosure. If there is no follow-up started in the debtor’s life, no follow-up is made against the estate after his death.
- In case it is determined that the bank’s managers and auditors caused the bank’s operating license to be revoked or transferred to the Fund by unlawful decisions and transactions, it is possible to take the personal responsibility of these persons and decide for their bankruptcy directly upon the Fund Board’s decision and upon the request of the Fund.
- In Article 292 of the Enforcement and Bankruptcy Law, it is regulated that in case of certain situations in terms of debtors subject to bankruptcy, upon the written report of the commissioner, the court may decide to reject the concordat request and bankrupt the debtor by removing the deadline. If a debtor who is not subject to bankruptcy makes a concordat offer, the concordat deadline is lifted or the concordat is not approved or completely terminated, its direct bankruptcy may be in question.
