Criminal Liability in Terms of Tax Procedures Law in Joint Stock and Limited Companies In our study on the criminal responsibility of the chairman and members of the board of directors of joint stock and limited company, the principle of the personality of the penalties in article 20 of the New Turkish Penal Code which entered into force on 1 June 2005 will be taken into consideration. The provisions regarding the personality principle of the penalties regulated both in Article 38 of the Constitution and Article 20 of the Turkish Penal Code No. 5237 are as follows:
In Article 38 of the Turkish Constitution, the 20. Personality of Penalties ”principle is esinde Personality of Penalties mış and açıkça Personality of Penalties” is clearly stated in the article 20 of the Turkish Penal Code numbered 5237 which came into force on 1 June 2005. No one can be held responsible for the act of someone else ”.
The principle of the personality of criminal responsibility implies that the perpetrator is personally responsible for the punishment and that third parties outside the perpetrator are not punished for conduct considered to be a crime [1].
It will be understood that the principle of the personality of criminal responsibility is based on the liability of defects in criminal law and that objective responsibility, that is, perfect responsibility, is abandoned. As a matter of fact, Article 23 of the Turkish Penal Code no. 5237 stipulates that no more severe punishment can be imposed than the person’s fault. This provision states that halinde If an act causes a heavier or other consequence than intended, the person must act at least in discretion in order to be held accountable for it. ” According to this provision, a heavier punishment than the fault of the person shall not be imposed [2].
After these disclosures, it is necessary to evaluate the criminal liability of the members of the board of directors of joint stock companies and limited liability companies in terms of Tax Procedure Law No. 213.
If the legal entities are taxpayers and tax responsible in paragraph 1 of Article 10 of Tax Procedure Law No. 213, their duties will be fulfilled by their legal representatives. and the provisions of Articles 360 and 360 shall be governed by hakkında those who commit such acts cez.
In practice, in the event that a Tax Crimes Report related to a joint stock company is issued and sent to the relevant Public Prosecutor’s Office, the statements of the chairman of the joint stock company and all board members are taken. In addition, if the joint stock company consists of family members, it is seen that there are lawsuits against all family members. However, considering the legal regulations, some communiqués and the decisions of our Supreme Court on this matter, it will be understood that no lawsuit should be brought against the chairman and all board members.
According to Article 317 of the Turkish Commercial Code, joint stock companies shall be idare administered and represented by the board of directors ile and Article 319 of the same law stipulates whether “the administration and representation works shall be divided among the board of directors and if so, how to do so. At least one member of the board of directors shall be given the authority to represent the company ”. First of all, it is necessary to determine which members of the company are authorized to represent and bind the company.
Nuri Ok and Ahmet Gündel, on the 46th page of his book Tax Crimes Crimes, include the following statements about criminal liability in joint stock and limited companies. As stated in the general explanations in the section titled sorumluluk Liability in Legal Persons ölçü, the measure of the responsibility of legal representatives is that the representatives who know the details of the act according to the nature of the event and who play a role in the formation of the legal representative are considered as criminal interlocutors. Otherwise, it is not all of the legal representatives shown in the laws or conventions [3].
In the Communiqué No. 143 of the Tax Procedure Law published in the Official Gazette dated 14.07.1981, issue 17402; Alarında According to Article 10 of the Tax Procedural Law, all members of the board of directors should not be held responsible in criminal cases, and the members of the board of directors who are responsible for the form, who know the details of the crime committed and who are involved in the formation of the crime should be punished [4].
Again in the General Communiqué on Tax Procedures Law no. 306 published in the Official Gazette dated 18.06.2002 and numbered 24789, the principle of the personhood of the penalties was taken as a basis and it should be stated that there should be no criminal complaint in case of using false or misleading documents. have been [5].
When the decisions of our Supreme Court are examined, it is seen that these statements have stabilized. 1990 / 9-312 E., 1990/349, dated 17.12.1990 of the General Assembly of the Supreme Court of Appeals, stated that kanun the legal representative responsible for the form should not be punished and those who know the details of the crime should be punished ”.
In the decision of the 11th Criminal Chamber of the Supreme Court of Appeals dated 9.5.2002 and numbered 2002/1198 E., 2001/3995 “