Withdrawal from Partnership in Limited Liability Company
In order for one of the partners of the limited liability company to withdraw from the partnership, it is required that the right to withdraw is granted in the contract or existence of justified reasons will be sought. If one of these reasons has been realized and one of the partners has filed a lawsuit for this purpose, the partner who has realized the same reasons for himself may also participate in the said case.
Regulation of Withdrawal from the Partnership in the Company’s Sections of Association:
Although it is not enough that withdrawal from the partnership is regulated in the Sections of association of the company, it is also important how the conditions of regulation are set. In the Sections of association, withdrawal from the partnership may be made conditional on the fulfillment of certain conditions, time or provision. In this case, it should be checked whether the conditions in question have occurred or not.
While the Sections of association states that some partners have the right to withdraw from the partnership, some partners may be prohibited from leaving the partnership. However, 358th Section of the Turkish Commercial Code regulates the principle of equal treatment. Accordingly, shareholders will be subjected to equal treatment on equal terms.
Withdrawal from the Partnership on the Basis of Justified Reason:
The main criterion for excluding one of the limited liability company partners from the partnership on the basis of justified reasons is that the continuation of the partnership relationship becomes impossible. The just cause may arise from the business relations of the partners or from their personal relations. In this case, the fault of the parties will not be sought and it will be sufficient that this situation has made it impossible to continue the partnership relationship.
Although there is no clear definition of just causes in the law, the regulations in different Sections of the law are accepted as just causes. In 245th Section of the Turkish Commercial Code, the justifiable reasons for the dissolution of the company and the separation of the partner are considered as exemplary.
Accordingly, the fact that a partner has betrayed the company in the management affairs of the company or in the settlement of its accounts, and misusing the company’s trade name or property for his/her personal interests can be given as examples of justified reasons. Therefore, it is necessary to decide whether there is just cause by examining the circumstances of the concrete case, company structure and all other factors.
Excluding from Partnership in Limited Liability Company:
In limited liability companies, excluding from the partnership may be in question if the reasons stipulated in the Sections of association occur and if the partnership takes a decision or if there is a justified cause. In the presence of justified cause, it may be decided to exclude the partner from the company through a court decision.
Excluding from the Partnership by the Decision of Company Partners:
If there is a regulation on exclusion from partnership in the company’s Sections of association, a decision to exclude from partnership may be taken if the conditions in accordance with this regulation are met. Related provisions of the Sections of association must be in accordance with the principle of equal treatment and must be objectively acceptable. The decision to exclude from partnership must be taken by the general assembly.
621st Section of the Turkish Commercial Code has the title of important decisions and regulates the condition that at least two-thirds of the votes represented and an absolute majority of the entire capital entitled to vote must be presented for taking certain general assembly resolutions. An application must be made to the court for the exclusion of a partner due to justified reason and this majority of votes must be provided for the exclusion of a partner from the company’s partnership because of a reason stipulated in the company’s Sections of association.
The partner who is excluded from the partnership by the decision of General Assembly must be notified about this decision through a notary public. The cancellation of general assembly’s decision may be requested through a lawsuit to be filed within 3 months after this notification is made to the relevant partner. The court will examine whether the reason for the exclusion from partnership has occurred or not.
If a decision is taken to exclude from partnership based on a reason stated in the Sections of association, the Court will carry out an examination only in terms of the compliance of this provision of Sections of association with the law, general morality and personal rights.
Exclusion from the Partnership by Court Decision and the Existence of Justified Reason:
If there are justified reasons, the right to exclude from partnership will arise regardless of whether the exclusion provisions are regulated in the partnership agreement or not. This right can be asserted through remedies.
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