Under Turkish law, the parties to an enforcement proceeding are the creditor and the debtor. In order for the creditor and debtor to take part in the enforcement proceedings, they must have the capacity of a party.
Although the Bankruptcy and Enforcement Law does not regulate the capacity of a party, Article 50 of the Code of Civil Procedure stipulates that “Whoever has the capacity to benefit from civil rights also has the capacity of a party in the lawsuit.” It is said that every natural and legal person who has the capacity of right has the capacity of a party in terms of enforcement proceedings.
In summary, since only natural and legal persons who have the capacity of right have the capacity of a party and can be a party to the enforcement proceedings, persons who do not have the capacity of a party cannot take part in the proceedings as a creditor or debtor. In addition, since the capacity of a party is related to public order, it will be examined ex officio and can be asserted at any time.
Under Turkish law, the legal personality of a liquidated company is terminated upon its cancellation from the trade registry. With the termination of the legal personality, the company’s rights and capacity as a party are also terminated. For this reason, a company that has lost its legal personality through liquidation cannot be a party to an enforcement proceeding.
On the other hand, Provisional Article 7 of the Turkish Commercial Code allows for the revitalisation of a company in case a claim is asserted against a company that has lost its legal personality. The revitalisation of the company in accordance with the relevant provisions is called the revival of the company.
The revitalisation lawsuit is filed directly by the creditor to the liquidator and the trade registry directorate that registered the liquidation of the company. The liquidator is not liable for the claimed receivable with his personal assets.
The competent court in the revitalisation case is the place where the company was headquartered before the liquidation, and the authorized court is the Commercial Court of First Instance.
In the event of a favourable outcome of the reinstatement lawsuit, the liquidated company is re-registered in the trade registry and becomes a legal entity. The court deciding on the revival shall appoint the last liquidator or a new liquidator for the additional liquidation of the company. The additional liquidation of the liquidated company is carried out only for the receivables subject to the liquidation, and the liquidator cannot take any other action during this additional liquidation.
After the revitalisation of the company, only the transactions related to the reasons for the revitalisation specified in the court decision can be carried out.
Following the finalisation of the reasons for revival, the company will be deleted from the trade registry again.
