{"id":1297,"date":"2023-07-20T18:21:00","date_gmt":"2023-07-20T15:21:00","guid":{"rendered":"https:\/\/www.raysanteknoloji.com\/meridyen\/?p=1297"},"modified":"2024-10-17T14:03:59","modified_gmt":"2024-10-17T11:03:59","slug":"compliance-kavrami-ve-yonetim-kurulu-uyelerinin-compliance-sorumlulugu","status":"publish","type":"post","link":"http:\/\/www.meridyenhukuk.com\/en\/compliance-kavrami-ve-yonetim-kurulu-uyelerinin-compliance-sorumlulugu\/","title":{"rendered":"COMPLIANCE CONCEPT and COMPLIANCE RESPONSIBILITY OF BOARD MEMBERS"},"content":{"rendered":"
    <\/ol>\r\n

    CONCEPT OF COMPLIANCE<\/strong>

    An English word \u201ccompliance<\/em>\u201d, which means \u201cto obey, to consent\u201d \u201cto comply (with)\u201d<\/em> verb, which is translated as \u201cconformity, compatibility\u201d (1). In the doctrine and some foreign jurisdictions, this type of liability is defined as \u201cRegulatory Compliance (Yasal Uyumluluk)\u201d<\/em> is also used. This concept implies that the legal requirements have been met. Legality here refers to compliance with both primary and secondary rules in the legislation. In the doctrine, the concept is interpreted in a broad sense, and companies that have \u201ccorporate governance principles\/standards\u201d and have declared a \u201cdeclaration of compliance\u201d are now responsible for the consequences of non-compliance, and the managers are also responsible for the consequences of non-compliance. compliance <\/em>responsibility may be impose<\/p>\r\n\r\n\r\n\r\n

    Besides all this compliance <\/em>concept also refers to entrepreneurial and organizational strategies that prevent the violation of rules and avoid responsibility. In this respect compliance<\/em> concept is a kind of preventive law mechanism (3). As a result compliance<\/em>is the avoidance of liability by a business with the best possible organization, taking the minimum actions for compliance (4).<\/p>\r\n

     <\/p>\r\n

    PURPOSE OF COMPLIANCE<\/strong><\/p>\r\n\r\n\r\n\r\n

    Compliance<\/em> The concept does not only define a type of responsibility of managers, but in a broad sense refers to the measures taken, organizations established and services provided to avoid this responsibility.\u00a0 Compliance<\/em>'s primary objective is to prevent compliance risks. It has two objectives in line with this purpose. The first is to bring the actions of company bodies and employees into compliance with the law. The second is to prevent significant violations such as civil and criminal liability and loss of company reputation by the company and its governing body. Compliance,<\/em> prevent or mitigate the risk of violations of regulations, standards or codes of conduct leading to legal sanctions, financial losses and reputational damage (5).<\/p>\r\n\r\n\r\n\r\n

    \u00a0Compliance<\/em>In addition to its preventive function, one of its main objectives is to overcome the crisis in the event of a possible violation. Compliance<\/em>refers to both a system that prevents violations of the law and a crisis management organization (6).

    <\/p>\r\n

    COMPLIANCE OBLIGATION UNDER TURKISH LAW<\/strong><\/p>\r\n\r\n\r\n\r\n

    Turkish Law compliance<\/em> responsibility and compliance<\/em> There is no direct provision regulating the establishment of a compliance organization. The obligation to establish a compliance organization is derived from Article 375\/1-e of the TCC titled \u201cInalienable duties and powers\u201d and Article 369\/1 of the TCC regulating the \u201cDuty of care and loyalty\u201d of the board of directors. The legal management and representation body of a joint stock company with legal personality is the board of directors. compliance<\/em> The board of directors is also responsible for the establishment, implementation and supervision of the organization (7). Article 375\/1-3 of the TCC does not distinguish between public or closed companies (8).<\/p>\r\n\r\n\r\n\r\n

    The board of directors is liable for unlawful transactions in the company pursuant to Art. 549 et seq. of the TCC. Company's non-compliance<\/em> A practice that falls within the scope of the management and\/or representation of the company shall, as a rule, be within the scope of duty of the board of directors. Pursuant to Art. 553\/1 TCC, the violation of a legal regulation that covers the company may be sufficient for the liability of the members of the board of directors (9).<\/p>\r\n\r\n\r\n\r\n

    In the Turkish legal doctrine, the effect of the delegation of representation authority to the executive members on the joint and several liability of the non-executive members of the board of directors is controversial. One view is that the company non-compliance<\/em> The court has argued that the members of the board of directors may be liable pursuant to Article 553\/1 of the TCC for their acts; however, in the event that the duty and authority regarding the act in question is delegated to an executive director or a non-executive director, the joint liability of the members of the board of directors shall cease pursuant to Article 553\/2-3 of the TCC (10). Another opinion, on the other hand, argues that the non-transferable superior supervision obligation of the members of the board of directors belongs to the board of directors as a board body, and the supervision belongs to the individual members of the board of directors due to fault liability (11).<\/p>\r\n\r\n\r\n\r\n

    In Turkish Law, effective supervision and regulation is available for publicly traded companies. In fact, the Capital Markets Board issues regulatory administrative procedures and audits whether public companies comply with corporate governance principles. In this regard, Article 1529\/1 of the TCC and Article 17 of the Capital Markets Law are the clearest provisions on the compliance and supervision of companies with corporate governance principles (12).<\/p>\r\n

     <\/p>\r\n

    EXAMPLES OF COMPLIANCE IN THE WORLD<\/strong><\/p>\r\n\r\n\r\n\r\n

    In recent years, the world has witnessed a spate of corporate violations of competition law, corruption, banking violations and money laundering. Corruption, bribery and manipulation cases against many famous companies operating on a global scale such as ABB, Siemens and Volkswagen have attracted public attention in the past. The European Commission fined Google \u20ac2.4 billion in 2017, \u20ac4.34 billion in 2018 for violating EU antitrust rules, and \u20ac1.49 billion in 2019 for abusing its market dominance, totaling \u20ac8.23 billion in three years (13). Individuals who were managers of the company in the years when these fines were imposed compliance <\/em>sorumlulu\u011fu g\u00fcndeme gelece\u011fine \u015f\u00fcphe bulunmamaktad\u0131r.<\/p>\r\n\r\n\r\n\r\n

    Companies may be required to comply with many different regulations depending on their field of activity. It is often impossible for even the most qualified manager to keep track of all of them. In order to protect themselves from serious sanctions and damages and to prevent damage to their reputations, it is of great importance for companies and managers to get help from expert lawyers and to manage compliance processes.<\/p>\r\n\r\n\r\n\r\n

     <\/p>\r\n

    SOURCE<\/strong><\/p>\r\n\r\n\r\n\r\n

      \r\n
    1. Pasl\u0131, Ali, \u201cThe Meaning of the Concept of Compliance in Joint Stock Company Law and Its Effect on the Liability System, I\u00dcHFM, C. 71, S. 2, Y. 2013, p. 317.<\/li>\r\n\r\n\r\n\r\n
    2. Pasl\u0131, s. 318-319.<\/li>\r\n\r\n\r\n\r\n
    3. Pula\u015fl\u0131, Hasan, Complianve Concept and Compliance Liability of the Governing Body, BAT\u0130DER, C. 35, S. 2, Y. 2019, p. 32; Pasl\u0131, p. 321.<\/li>\r\n\r\n\r\n\r\n
    4. Pula\u015fl\u0131, s. 32.<\/li>\r\n\r\n\r\n\r\n
    5. Pula\u015fl\u0131, s. 34.<\/li>\r\n\r\n\r\n\r\n
    6. Pula\u015fl\u0131, s. 34.<\/li>\r\n\r\n\r\n\r\n
    7. Pula\u015fl\u0131, s. 53.<\/li>\r\n\r\n\r\n\r\n
    8. \u0130svi\u00e7re Federal Mahkemesi'nin 24.03.2011 tarihli, IN_41\/2011, I. \u00d6ffentlich-rechtliche Abteilung. Karar i\u00e7in bkz. Pula\u015fl\u0131, s. 55 \u2013 56.<\/li>\r\n\r\n\r\n\r\n
    9. Pasl\u0131, s. 332.<\/li>\r\n\r\n\r\n\r\n
    10. Pasl\u0131, s. 332.<\/li>\r\n\r\n\r\n\r\n
    11. Pula\u015fl\u0131, 58; Bkz. Yarg\u0131tay 11. HD, K.T: 07.10.1994, 1994\/5009 E. 1994\/7236 K.<\/li>\r\n\r\n\r\n\r\n
    12. For detailed information, see Ya\u015far, Tu\u011f\u00e7e Nimet, \u015eirketler Hukuku A\u00e7\u0131s\u0131ndan \u201cCompliance\u201d Kavram\u0131 ve Borsaya Kay\u0131tl\u0131 \u015eirketlerde Uygulamas\u0131, PhD Thesis, Ankara 2018, Ankara University Institute of Social Sciences, p. 336 et seq.<\/li>\r\n\r\n\r\n\r\n
    13. Pula\u015fl\u0131, s. 30.<\/li>\r\n<\/ol>","protected":false},"excerpt":{"rendered":"","protected":false},"author":2,"featured_media":1402,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"rank_math_lock_modified_date":false,"footnotes":""},"categories":[94],"tags":[],"class_list":["post-1297","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-tum-makaleler"],"_links":{"self":[{"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/posts\/1297"}],"collection":[{"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/comments?post=1297"}],"version-history":[{"count":5,"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/posts\/1297\/revisions"}],"predecessor-version":[{"id":13453,"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/posts\/1297\/revisions\/13453"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/media\/1402"}],"wp:attachment":[{"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/media?parent=1297"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/categories?post=1297"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.meridyenhukuk.com\/en\/wp-json\/wp\/v2\/tags?post=1297"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}