THE PLACE OF THE INSURANCE COMPANIES IN TURKISH LEGISLATION
When we look at the general plan of insurance in the world, it is seen that the companies are in the insurance area are two kinds. One of them is limited partnerships in which the capital is divided into shares and the other one is joint stock companies but we can accept that the limited partnerships in which the capital is divided into shares is much more rare.
In our old insurance legislation (No. 1149 act on the inspection and control of the insurance and the insurance company) had been accepted insurance can have done by only the limited partnerships in which the capital is divided into shares. (m.1) The act no. 7397 has accepted that only joint stock companies is suitable for the protection of the act. Act 3379, amending this act and KHK / 539 retained this provision.
Insurance companies are subject to special rules in terms of insurance acts, for example establishment, operation and supervision.
Establishment of insurance companies and reinsurance companies (Amended R.G. 29.06.2012 - 28338)
Article 3 (1) will operate in Turkey with insurance companies and reinsurance companies must be established as joint stock companies or cooperatives. Insurance companies and reinsurance companies can not engage in any business other than those involving insurance operations and those directly linked to them.
According to Article 3- (1) of the Insurance Act if a company wants to operate in Turkey in the field of insurance or reinsurance must be established as a joint stock company or cooperative. They can only do insurance operations and additionally must not engage in outside operations with a direct connection with them.
With this provision, unlike the joint-stock companies that are organized in the Turkish Commercial Act, insurance companies are clearly prohibited from doing commercial operations. The duty of investigating is given to the ‘’Insurance Supervisory Board’’ and the belonging of this duty is protected in article 41 of Act no. 7397, in amendment act and in Decree Act 539.
In the directives of the EU concerning life and non-life insurance companies, this provision is regulated as follows: Insurance companies should limit their work to treatments directly related to insurance, other than insurance and all other commercial activities.
The terms of establishment of joint stock companies are shown in the companies section of the Turkish Commercial Code. Insurance companies are also subject to all the provisions of the Commercial Code, the establishment of the joint-stock companies, the operation and the termination of the corporation, and the state control of joint stock companies. In accordance with the provisions of these provisions, a joint stock company - with an exception foreseen in its law on the capital surveillance - will be able to apply for a license by fulfilling the conditions set forth in its law in order to be able to undertake insurance and to start working only after obtaining a license. The Company shall be subject to the provisions of the Commercial Code within the period of its beginning and at the end of the term, unless there is a special provision in the Insurance Law.
After all, all insurance companies have to fulfill all of their obligations from Insurance Act No.3379 Clause 5. At the same time according to the one of the fundamental rule of law ‘’Lex specialis derogat legi generali’’ if a dispute that may arise about insurance companies the special clause dismisses the general provision. The dispute has to be resolved according to the provisions of the Insurance Act.
Insurance companies that operating in Turkish Law have the title of merchant. Mutual insurance companies are subject to the same provision. With this provision, all the consequences of having the title of merchant will born on the insurance companies.
The company must use the title for the entire work. It is liable for all of his bookkeeping obligations. Since all the debts of the company are commercial, the debts and disputes arising from the insurance contract are commercial and therefore the commercial courts are authorized.
Finally, the company must always act like a prudent trafficker, because all the operations of the insurance companies are controlled by the state.
As a result when the insurance companies are in action they have to fulfill their obligations from both the Turkish Commercial Act and Insurance Act. Because of this reason the above of two acts have to be considered together in a possible conflict about insurance companies in Turkish Legislation.
Sigorta Şirketlerinin Mevzuatlara Tabiyeti
The Place of the Insurance Companies in Turkish Leg.
Av. M. Burak KÜÇÜKİSLAMOĞLU