Article 29. The Protection of Property of a Missing Person
1. On the basis of a court decision, guardianship shall be established with regard to the property of a person who is recognized as missing. Subsistence shall be paid from that property to the persons whom the missing person was to support, and his debts shall be repaid with regard to taxes and any other liabilities.
2. Pursuant to the application of the interested persons, the guardianship and tutorship authority may appoint an administrator to guard and manage the property until the one year expires after the date when last information concerning the location of the missing person was received.
Article 30. The Abolition of a Decision to Recognize a Person as Missing
In the case of arrival or the establishment of the locations of a person who is recognized as missing, the court shall abolish its decision to recognize him (her) as missing and to establish guardianship over his (her) property.
Article 31. The Announcement of a Citizen as Deceased
1. Pursuant to the application of interested persons, a citizen may be announced by the court as deceased, if there is no information about him (her) in the place of his domicile for three years; and, if he disappeared under circumstances which threatened death or which give grounds to assume his death in an accident, for six months.
2. A military serviceman, or any other person who is missing in connection with military actions, may be announced deceased not earlier than upon the expiry of two years from the date of the termination of the military operations.
3. The date of the death of a person who is announced as deceased shall be deemed to be the day that the decree of the court, which announced him (her) as deceased, enters into legal force. In the cases of announcing persons as deceased, a person who is missing under circumstances which threaten death or which invoke the assumption of his death in an accident, the court may recognize the date of the assumed death of this person as the date of his death.
4. When the decision of a court announcing a person as deceased enters into legal force, his death shall be entered into the books for the registration of civil status acts. The consequences of such an entry shall be the same as of an entry of actual death.
Article 32. The Consequences of the Appearance of a Person Announces as Deceased
1. In the case that a person who has been announced as deceased, re-appears or his (her) location is established, the relevant court decision shall be annulled.
2. Irrespective of the time of his (her) re-appearance, the citizen may claim the return of remaining assets which were free of charge transferred to persons after the announcement of the citizen as deceased, from those persons.
3. If the property of a person announced as deceased, was sold by his (her) legal successor to third persons who by the time of re-appearance failed to pay the full purchase price, then the person who reappeared shall have the right to claim the outstanding amount.
4. The persons to whom the property of a citizen who was announced as deceased was transferred through commercial transactions, shall be obliged to return to him (her) that property; and in case they do not have it, they must compensate for its value, if it is proved that at the time of the acquisition of the property they knew that the citizen who was announced deceased, was alive.
5. The alienator of the assets who knew at the moment of the alienation that the person announced as deceased is alive, shall bear, jointly with the buyer, the responsibility to return or compensate the value of the property.
6. When the property of a person who is announced as deceased was transferred to the State under its right to inherit and was sold, then, after the abolition of the decision to announce the person as deceased, he (she) shall be repaid the amount which is received from selling his (her) property subject to its market value as on the date of the payment.
Paragraph 2. Legal Entities
I. General Provisions
Article 33. The Definition of a Legal Entity
1. An organization which pursue the recovery of income as the primary purpose of the activity (commercial organization) or doesn’t have gaining income as a goal and doesn’t distribute any net income between the parties (non-profit organization) shall be recognized as the legal entity.
2. A legal entity shall have a seal with its name.
Article 34. Thes and Forms of Legal Entities
1. A legal entity may be an organization which pursues the extraction of profits income as the principal purpose of its activities (commercial organization), or which does not have the extraction of profits income as such a goal and which does not distribute earned profits, earned net income between its participants (non-commercial organization).
2. A legal entity which is a commercial organization (enterprise) may be created solely in the form of a state-owned enterprise, business partnership, joint-stock company or production cooperative.
3. A legal entity, which is a non-commercial organization, may be created in the form of an institution, public association, joint-stock company consumer co-operative, public foundation, religions association and any other form which is provided for by legislative acts. A non-commercial organization may engage in entrepreneurial activity only for as long as it is consistent with the objectives of its charter.
3-1. A legal entity that is a non-commercial organization and maintained at the expense of the state budget may be formed exclusively in the form of a state-owned institution.
4. Legal entities may create associations.
5. A legal entity shall act on the basis of this Code, the Law concerning each of legal entities, any other legislative acts and their foundation documents.
Article 35. The Legal Competence of a Legal Entity
1. A legal entity may have civil rights and bear obligations associated with its activity in accordance with this Code.
Commercial organizations, except for state-owned enterprises, may have civil rights and bear civil obligations, which are necessary for the exercise of anys of activity which are not prohibited by legislative acts or their foundation documents.
In the cases stipulated by legislative acts, an opportunity to engage in another activity may be prohibited or restricted for legal entities carrying out certains of activity.
A legal entity may engage in certains of activities, the list of which is defined by legislative acts, only on the basis of a license.
2. The legal competence of a legal entity shall arise at the moment of its creation and it shall cease at the time of completion of its liquidation. The legal competence of a legal entity in a sphere of activities which requires a license shall arise from the moment of the procurement of such a license and it shall cease at the moment of its revocation, expiry of the term of its validity or recognition of it as invalid in accordance with the procedure established by legislative acts.
3. The legal competence of a legal entity who is a non-commercial organization and maintained solely at the expense of the state budget (state institution) shall be defined by this Code and other legislative acts of the Republic of Kazakhstan.
Article 36. The Rights of Founders (Participants) with regard to the Property of the Legal Entities Formed by Them
1. The founders (participants) of a legal entity may have obligatory or corporeal rights with regard to the separate property of the legal entity.
2. Business partnerships, joint-stock companies and co-operatives shall be recognized as legal entities which property remains under the obligatory rights of their participants (foundation parties).
3. The organizations which hold their property under the right of economic jurisdiction or under the right of operational management shall be recognized as legal entities which properties remain under the right of ownership or under other corporeal rights of their foundation parties.
4. Public associations, public foundations and religious associations shall be recognized as legal entities which properties don’t remain under the right of ownership of their foundation parties.
5. The rights of the founders (participants) to the property of the legal entities and other legal forms that they have created, are determined by the legislative acts of the Republic of Kazakhstan.
Article 37. Bodies of a Legal Entity
1. A legal entity shall acquire civil rights and assume obligations only through its bodies which operate in accordance with legislative acts and the foundation documents.
2. These of the procedure for appointing or electing the bodies of a legal entity and their powers shall be defined in legislative acts and the foundation documents.
Article 38. The name of a Legal Entity
1. A legal entity shall have its name, which permits to distinguish it from any other entities.
The name of a legal entity shall consist of its name and an indication of its organizational and legal form. It may contain any additional information provided for by legislation.
The name of a legal entity shall be indicated in its foundation documents.
It shall be prohibited to use in the name of a legal entity, names which contradict the requirements of legislation or the norms of public ethics; the proper names of persons, unless they coincide with the names of participants, or where the participants failed to obtain the permission from those persons (their heirs) to use the proper name;
2. Legal entity shall be entered into the state register of legal entities under the appropriate name.
The name of the legal entity shouldn’t entirely or partly duplicate the name of the legal entities registered in the Republic of Kazakhstan.
The name of a legal entity which is a commercial organization, after the registration of the legal entity, shall be its business name.
A legal entity shall have an exclusive right to use its business name. A person who illicitly uses somebody else's business name must terminate the use of such a name and to compensate the losses caused, pursuant to the requirement of the owner of the right to the business name.
The rights and obligations of a legal entity which are associated with the use of a business name shall be determined in legislation.
3. Is excluded
4. The use of references to official names of the state bodies of the Republic of Kazakhstan established by legislative acts, acts of the President and Government of the Republic of Kazakhstan in the business names, service signs, trademarks of the legal entities which are not state bodies shall be prohibited.
Article 39. The Location of a Legal Entity
1. The place where the permanently operating body of a legal entity is situated shall be recognized as the location of that legal entity.
2. The location of a legal entity shall be indicated in its foundation documents with the inscription of its full address.
3. In its relations with third persons a legal entity shall not have the right to refer to non-compliance of its actual address to the address entered into the state register. At the same time third persons shall have the right to send postal and other correspondence to a given legal entity both to the address entered into the state register, and to its actual address.
Article 40. The Founders of a Legal Entity
1. A legal entity may be founded by one or several founders.
2. The owners of the property or the bodies and persons authorized by them, and any other legal entities in the cases specifically provided for by legislative acts may be founders of a legal entity. At the same time the legal entities which own the property on the basis of a right of economic jurisdiction or operational management, may be the founders of other legal entities with the consent of their owners or the bodies authorized by their owners except the cases provided for by the Laws of the Republic of Kazakhstan.
3. The founders of the legal entity cannot have any advantage over other members of the legal entity, who are not its founders, except in cases stipulated by legislative acts of the Republic of Kazakhstan.
Article 41. Foundation Documents of a Legal Entity
1. A legal entity shall carry out its activities on the basis of its Charter and the Foundation Agreement or, if a legal entity is found by one person it shall carry out its activities on the basis of its Charter and the written resolution about foundation of the legal entity (resolution of the sole founder) unless it is otherwise provided for by legislative acts of the Republic of Kazakhstan. In the cases specified by legislative acts of the Republic of Kazakhstan, a legal entity which is not a commercial organization, may operate on the basis of general regulations concerning the organizations of that.
A legal entity which is a small business may carry out its activities on the basis of the Model Articles the content of which is defined by the Government of the Republic of Kazakhstan.
2. The foundation agreement of a legal entity shall be entered into and its charter shall be approved by its foundation parties. No foundation agreement shall be entered into if a commercial organization is established by one person.
3. The foundation documents of a non-commercial organization and of a state-owned enterprise, must define the objects and aims of the activities of that legal entity.Foundation documents of a business partnership, joint-stock company and a production cooperative may provide the objectives and purposes of their activity.
4. In the foundation agreement parties (founders) undertake to create a legal entity, define the procedure for their joint activities to create it, the conditions for the vesting into its ownership (business authority, operational management) of their property and for their participation in its activities. The agreement shall also define the terms and procedure for the distribution of net income between the founders, management of the business of the legal entity, cessation of founders and approve its charter, unless it is otherwise provided for by this Code or legislative acts concerning specifics of legal entities.
Any other provisions may be included into a foundation agreement by the consent of the founders.
4-1. The decision of the sole founder shall contain the provisions of transfer of ownership (economic management, operational management) the property and other solutions that do not contradict to the legislation of the Republic of Kazakhstan.
The decision of the sole founder-legal entity is taken by the authorities that have the right to make such decisions in accordance with the legislation of the Republic of Kazakhstan and the charter of the legal entity.
5. The name of a legal entity, its location, procedure for the formation and the competence of its bodies, provisions of the reorganization and termination of its activities shall be provided I n the charter.
If a legal entity is established by one person, then a procedure of the formation of the property and the distribution of profits shall also be defined in its charter.
Other provisions which do not contradict legislation may be specified in a charter.
6. In the case of contradictions between the foundation agreement and the charter of the same legal entity, their provisions must apply as follows:
1) those of the foundation agreement, when they are associated with internal relationship of founders;
2) those of the charter, when their application may have significance for relations of the legal entity with third persons.
7. Any interested parties shall have the right to peruse the charter of a legal entity.
Article 42. The State Registration and Re-Registration of Legal Entities
1. A legal entity shall be subject to state registration by the bodies of Justice except for the cases provided for by legislative acts of the Republic of Kazakhstan. The procedure for the state registration shall be defined by legislation.
2. Information concerning state registration, in particular, the business names of commercial organizations, shall be included in the Single State Register of Legal Entities.
3. A legal entity shall be deemed to be created from the moment of its state registration.
4. Branches and representations shall be registered in accordance with the procedure established by legislative acts.
Branches and representations shall be subject to re-registration in the event that they change their name.
5. Violation of legal entity formation procedure established by the law or noncompliance of its foundation documents with the law shall cause the refusal to register the legal entity. The refusal to register on the basis of non-expedience of the formation of a legal entity shall not be allowed.
The denial of state registration and also the evasion of such registration may be challenged in a court.
6. A legal entity shall be subject to re-registration in the following cases:
1) reduction of the size of the charter capital;
2) change of name;
3) alteration of the membership of participants in business partnerships (except for the business partnerships, in which maintaining of the register of members of an business partnership is carried out by the professional participant of the paper market, who carries out activities in maintaining the system of registers of securities holders).
Amendments introduced to foundation documents on specified grounds shall be invalid without the re-registration of the legal entity.
In the case of passing other amendments and additions to foundation documents, a legal entity shall notify the registering body to that effect within one month.
Article 43. Branches and Representations
1. A separate subdivision of a legal entity which is located outside the place of its location and which carries out all or part of its functions including the function of representation shall be a branch.
2. A separate subdivision of a legal entity, which is located outside the place of its location, which carries out the protection and representation of the interest of the legal entity and which enters transactions and any other legal acts of the Republic of Kazakhstan shall be a representative.
3. Branches and representations shall not be legal entities. They shall be vested with property by the legal entity that created them, and they shall operate on the basis of laws approved by it.
4. Managers of structural subdivisions (branches and representations) of public associations shall be elected in the procedure specified by the charter of the public association and the provisions concerning its branch or representation.
Managers of structural subdivisions (branches and representations) of religious associations shall be elected or appointed in the procedure specified in the charter of the religious association and the provision concerning its branch or representation.
Managers of affiliates and representations of other forms of legal entities shall be appointed by authorized bodies of the legal entities and they shall operate on the basis of powers of attorney.
Article 44. The Liability of a Legal Entity
1. Legal entities, except for special companies financing by founders of the institutions and public enterprises shall be liable for their obligations with all the assets that they have.
An institution shall be liable for its obligations with the funds at its disposal. When those are not sufficient the liability for the obligations of an institution shall be borne by its founder.
A public enterprise shall be liable for its obligations with the funds at its disposal.
When funds of a state owned institution are not sufficient, the liability for its obligations shall be borne by the Government of the Republic of Kazakhstan or the administrative-territorial unit by the means of the appropriate budget.
Special financial company shall be responsible for its obligations in manner required by the legislation of the Republic of Kazakhstan on project financing or securitization.
2. An founder (participant) of a legal entity or the owner of its property shall not be liable under its obligations, and the legal entity shall not be liable under obligations of founder (participant) of the legal entity, or of the owner of its property, except for the cases stipulated by this Code, other legislative acts, or the foundation documents of a given legal entity.
3. If the bankruptcy of a legal entity is caused by acts of its founder (participant), or the owner of its property, then, in the case of insufficiency of funds of the legal entity, the founder (participant), or the owner of its property accordingly, shall bear secondary liability before creditors.
4. A legal entity shall bear liability before third persons under obligations assumed by a body of the legal entity in excess of its powers established by the foundation documents, except for cases stipulated in paragraph 11 of Article 159 of this Code.
Article 45. Reorganization of a Legal Entity
1. The reorganization of a legal entity (merger, acquisition, division, appropriation, transformation) shall be carried out pursuant to the decision of the owner of its property or the body authorized by the owner, of the founders (participants) and also upon the decision of the body of the legal entity authorized by the foundation documents, or upon the decision of the judicial bodies in the cases which are specified by legislative acts. Legislation may also stipulate other forms of reorganization.
Reorganization of a legal entity which is an accumulation pension fund, insurance (reinsurance) organization, fund of guaranteeing of insurance payments, special financial company shall be carried out subject to the special considerations provided for by legislation of the Republic of Kazakhstan concerning pension support, insurance and insurance activities, fund of guaranteeing the insurance payments, project financing and securitization.
Reorganization of the joint-stock companies shall be carried out taking into account the peculiarities established by the legislation act of the Republic of Kazakhstan concerning joint-stock companies.
2. Reorganization may be conducted voluntarily or compulsorily.
3. A compulsory reorganization may be effected pursuant to the decision of judicial bodies in the cases specified by legislative acts.
If the owner of the property of a legal entity, a body authorized by it, its founders or a body of a legal entity which is authorized to reorganize it by the foundation documents does not perform the reorganization of the legal entity within the term defined in the decision of the judicial body, the court shall appoint an administrator of the legal entity and order him (her) to carry out the reorganization of the legal entity. From the moment of the appointment of the administrator all the powers associated with the management of the legal entity's business shall be transferred to him (her). The administrator shall act on behalf of the legal entity in the court of law, compile the dividing balance sheet and present it for the approval of the court together with the foundation documents of the legal entities which emerge as a result of the reorganization of the legal entities. The approval by the court of the indicated documents shall be the basis for the state registration of the newly-emerged legal entities.
4. A legal entity shall be regarded to be reorganized, except for the case of reorganization in the form of acquisition, from the moment of the registration of the newly-emerged legal entities.
When a legal entity is reorganized by way of acquisition of any other legal entity, the former of them shall be regarded to be reorganized from the moment when the record on termination of the activities of the acquired legal entity is made into the State Register of Legal Entities.
Article 46. The Legal Succession when Legal Entities are Reorganized
1. When legal entities merge, the rights and obligations of each of them shall be transferred to the newly-emerged legal entity in accordance with the delivery acceptance act.
2. When a legal entity is acquired by any other legal entity, the rights and obligations of the acquired legal entity shall be transferred to the latter in accordance with the delivery acceptance act.
3. When a legal entity is divided, its rights and obligations shall be transferred to the newly-emerged legal entities in accordance with the dividing balance sheet.
4. When one or several legal entities are appropriated out of a legal entity, the rights and obligations of the reorganized legal entity shall be transferred to each one of them in accordance with the dividing balance sheet.
5. When a legal entity of one is transformed into a legal entity of another (altering its organizational and legal form), the rights and obligations of the reorganized legal entity shall be transferred to the newly-emerged legal entity in accordance with the delivery acceptance act.
Article 47. The Delivery Acceptance Act and Diving Balance Sheet
1. The property rights and obligations of a reorganized legal entity shall be transferred to the newly created legal entity: in accordance with the delivery acceptance act in the case of mergers and acquisitions; and in accordance with the dividing balance sheet in the case of divisions and appropriations.
The delivery acceptance act and dividing balance sheet must contain the provisions concerning the legal succession with regard to all the obligations of the reorganized legal entity with regard to all its creditors and debtors, including the obligations which are challenged by parties.
2. The delivery acceptance act and dividing balance sheet shall be approved by the owner of the property of the legal entity or by the body which adopted the decision to reorganize the legal entity, and submitted together with the foundation documents for the registration of the newly-emerged legal entities or the introduction of amendments to the foundation documents of existing legal entities.
Failure to present an appropriate delivery acceptance act or dividing balance sheet together with the foundation documents and also the absence of provisions concerning legal succession with regard to the obligations of the reorganized legal entity in them shall entail the denial of the state registration of the newly emerged legal entities.
3. Property (rights and obligations) shall be transferred to a legal successor at the moment of its registration, unless otherwise provided for by legislative acts or in the decision concerning the reorganization.
Article 48. The Guarantees of the Rights of Creditors of a Legal Entity in the Case of its Reorganization
1. The owner of the property of a legal entity or the body which adopted the decision to reorganize a legal entity shall be obliged to notify in writing the creditors of the legal entity to be reorganized.
2. In the case of division or appropriation the creditor of a legal entity under reorganization shall have the right to demand a premature termination of the obligations, the debtor under which is that legal entity and compensation of losses.
3. If the dividing balance sheet does not provide for any possibility to identify the legal successor of the reorganized legal entity or the legal successor has not enough property to fulfill the obligations aroused prior to the reorganization the newly-emerged legal entities as well as the legal entity from which another legal entity was appropriated shall be jointly and severally responsible for the obligations of the reorganized legal entity before its creditors.
Article 49. Grounds for the Liquidation of a Legal Entity
1. A legal entity may be liquidated for any reasons, pursuant to a decision of the owner of its property, or of the body authorized by the owner, and also pursuant to the decision of a body of the legal entity so authorized by the foundation documents.
Liquidation of a legal entity which is an accumulation pension fund, insurance (reinsurance) organization, fund of guaranteeing of insurance payments, special financial company, cotton treating organization shall be carried out subject to the special considerations provided for by legislation of the Republic of Kazakhstan concerning pension support and insurance activities fund of guaranteeing of insurance payments, project financing and securitization, development of the cotton branch.
2. A legal entity may be liquidated in accordance with a court decision in the following cases of:
1) bankruptcy;
2) recognition of registration of a legal entity as invalid, because of violations of legislation made in the formation of that legal entity, which cannot be eliminated;
3) the absence of a legal entity, as well as the founders (participants) and officers, without which a legal entity may not operate for one year, at its location or the actual address;
4) carrying out of activities in gross violation of the legislation:
systematically carrying out of activities contradicting the statutory purposes of the legal entity;
systematically carrying out of activities without an appropriate permit (license) or activity prohibited by the legislative acts;
5) in any other cases specified by legislative acts.
3. The claim to liquidate a legal entity on the grounds indicated in the second paragraph of this Article, may be presented to the court by the state body to which the right to file such claims is granted by the legislative acts, and in the cases of bankruptcy - also by the creditor.
Obligations associated with the performance of the liquidation of a legal entity may be entrusted by a court decision concerning the liquidation of that legal entity to the owner of its property, to the body authorized by the owner, to the body authorized for the liquidation of a legal entity by the foundation documents or to any other bodies (person) appointed by the court.
4. If the cost of properties of a legal entity, in respect of which there is taken a decision on liquidation in accordance with paragraph 1 of this Article, is insufficient for satisfaction of creditors' claims, such legal entity may be liquidated in accordance with legislation concerning bankruptcy.
5. Liquidation of certains of legal entities shall be possible, pursuant to a decision of the relevant body which is authorized by the state, on the grounds stipulated in legislative acts.
Article 50. The Procedure for the Liquidation of Legal Entities
1. The owner of the property of a legal entity or a body which adopted the decision to liquidate the legal entity shall be obliged to write about it immediately to the body of Justice which performs the registration of legal entities.
2. The owner of the property of a legal entity or a body which took the decision to liquidate the legal entity shall appoint the Liquidation Commission and establish the procedure and dates for the liquidation in accordance with this Code.
From the moment that the Liquidation Commission is appointed, it shall acquire the powers associated with managing of the property and the business of the legal entity. The Liquidation Commission shall act in the court on behalf of the legal entity under liquidation.
3. A Liquidation Commission shall publish the information concerning the liquidation of a legal entity, as well as the information concerning the procedure and the period for filing claims by its creditors, in the official publications of the central body of justice. The period for filing claims may not be less than two months from the time of publication concerning the liquidation.
A Liquidation Commission shall take steps to identify creditors and to recover debts, and also it shall give creditors written notice about the legal entity liquidation.
4. Upon expiry of the period for creditors to file their claims, the Liquidation Commission shall compile the intermediary liquidation balance-sheet which shall contain information concerning the composition of the property of the legal entity under liquidation, the list of claims filed by the creditors, and also concerning the results of the examination of them.
The intermediary liquidation balance-sheet shall be approved by the owner of the property of the legal entity or by the body which took the decision to liquidate that legal entity.
When drawing up intermediary liquidation balance-sheet the property of the liquidating legal entity shall not include allocated assets, which are collaterals for the special financial company’s obligations in project finance, for the special financial company’s bonds during securitization, issued in accordance with the legislation of the Republic of Kazakhstan on project finance and securitization and mortgage property that is following collateral for the mortgage bonds: rights to claim under the agreement mortgage loan (including mortgage certificates), as well as government securities of the Republic of Kazakhstan in the cases where the ownership of the bonds came from their holders or transferred to them on transactions or on other grounds stipulated by legislative acts of the Republic of Kazakhstan. Specified property and leased assets shall be transferred by liquidation committee to the representative of mortgage bond holders, representative of creditors and (or) holders of bonds, representing, determined in accordance with the legislation of the Republic of Kazakhstan on project finance and securitization, to satisfy the claims of creditors.
5. If a legal entity under liquidation (except for state-owned institutions) is short of funds for the satisfaction of the creditors' claims, the liquidation commission shall carry out a sale of the assets of the legal entity in a public auction in accordance with the procedure established for the execution of court decisions.
6. Disbursement of money to the creditors of a legal entity in liquidation, shall be carried out by the liquidation commission in a priority procedure as established by Article 51 of this Code, in accordance with the interim balance-sheet, beginning from the date of its approval. Special considerations in distribution of assets of joint-stock companies shall be established by legislation concerning them.
7. Upon completion of the settlements with creditors, the liquidation commission shall compile the liquidation balance-sheet, which shall be approved by the owner of the assets of the legal entity, or by the body which adopted the decision to liquidate the legal entity.
8. The assets which remain upon the satisfaction of creditors' claims shall be used for the purposes indicated in the foundation agreements.
9. In the event that a public enterprise in liquidation is short of assets, and in the case of an institution in liquidation being short of monetary resources funds for satisfying the claims of creditors, the latter shall have the right to appeal to the court with an action to satisfy the remaining amount of claims at the expense of the owner of the assets of the enterprise or institution.
9-1. Is excluded
