2. When it is impossible to establish the date of receipt of the last information on a missing person, the beginning of the absence in obscurity shall be deemed to be the first date of the month following the one in which the last information was received on the absentee, and in the case where it is impossible to establish that month, it shall be the first of January of the next year.
Article 29. The protection of the assets of a person absent in location unknown
1. The property of a person who is recognized as absent in location unknown on the basis of a court decision, a guardian shall be established. Subsistence shall be paid from that property to the person whom the missing in obscurity was to support in accordance with the Law and his debts shall be repaid with respect to taxes and any other obligations of the person absent in location unknown.
2. Upon the application of the interested parties, the body of adopting and guardianship may appoint a guardian to guard and manage the property until the expiration of one year from the date of the receipt of the last information on the place of location of the absent person.
Article 30. The Abolition of the decision to recognize a person as absent in location unknown
In the case of his arrival or establishment of the place of location of the person who is recognized as absent in location unknown, the court shall abolish the decision to recognize him as absent in location unknown and to establish the guardianship over his property.
Article 31. Declaration of a citizen as deceased
1. The court may declare a citizen as deceased if at the place of his residence there is no information on him at the place of his residence within three years, and if he disappeared under the circumstances which threatened death or which give grounds to assume his demise within six months in an accident.
2. A military serviceman or any other person who disappeared in relation to military actions, may be declared deceased not earlier than upon the expiration of two years from the date of the termination of the military action.
3. The date of the demise of a person who is declared deceased shall be the day of the entering into legal force of the resolution of the court, which declared him deceased. In the cases of the declaration as deceased a person who disappeared without notice under circumstances which threatened death or which gave rise to the assumption of his demise in an accident, the court may recognize the date of the assumed demise of this person as the date of his death.
4. On the basis of the decision of a court, declaring a person as deceased, which entered into force, an entry shall be made of his death in the books of the registration of the acts of the civil status. The consequences of the entry shall be the same as the entry of the actual death.
Article 32. Consequences of the arrival of a person declared deceased
1. In the case that the person arrives or the place is established where he, stays who has been declared deceased, the relevant decision of the court shall be annulled.
2. Irrespective of the time of his arrival, the citizen may claim from any person to return the assets that have been preserved, which assets were freely transferred to that person after the declaration of the citizen as deceased.
3. If the properties of the person declared deceased were alienated by his legal successor to third parties, which at the moment of the return of the person have not paid entirely the purchase price, then the right to claim the unpaid amount shall transfer to the returned person.
4. The persons to whom the property of a citizen who was announced as dead was transferred on the compensatory transactions, shall be obliged to return to him those assets, and in case they do not have it, to compensate him for the value, if it is proved that at the moment of the acquisition of the property they knew that the citizen who was announced deceased, is alive.
5. The alienator of the assets who knew at the moment of the alienation that the person declared deceased was alive, shall bear, jointly and severally with the buyer, the responsibility to return or compensate for the value of the property.
6. Where the property of a person who is declared deceased is transferred by the right to inherit to the state and is sold, then after annulment of the decision to declare the person as deceased, he shall be repaid the amount which is received from the selling of his property, considering its market value on the date of the payment.
Paragraph 2. Legal Entities
1. General Provisions
Article 33. The concept of a legal entity
1. The legal entity shall be recognized as an organization which has in accordance with the right to own, the right of business authority or operational management, its separate assets and which organization is liable with this property in respect of its obligations, which may in its name acquire and exercise proprietary and personal non-property rights and obligations, be the plaintiff and defendant in the court. A legal entity must have its independent balance-sheet or budget.
2. A legal entity shall have the seal with its name.
Article 34. The types and forms of legal entities
1. A legal entity can mean any organization which pursues the making of profit as the principal purpose of its activities commercial organization), or which does not have the making of profit as such a goal and which does not distribute the made profits between the participants (noncommercial organization).
2. A legal entity which is a commercial organization (enterprise) may be formed in the form of a state enterprise, a business partnership, or production cooperative.
3. A legal entity, which is a non-commercial organization, may be created in the form of an institution, a public association, a consumer cooperative, a public foundation, a religious association and any other form which is provided in the legislative acts. A non-commercial organization may engage in entrepreneurial activity only for as long as it complies with the objectives of its charter.
4. Legal entities may create associations.
5. A legal entity, shall act on the basis of the present Code, the Law concerning each type of legal entities, :any other legislative acts and then foundation documents.
Article 35. The legal capacity of a legal entity
1. A legal entity may have the civil rights and bear the responsibilities which are related to its activity in accordance with the present Code. A legal entity may engage in certain types of activities, the list thereof is established by the legislative acts, only on the basis of a license.
2. The legal capacity of a legal entity shall arise at the moment of its creation and it shall cease at the moment of the completion of its liquidation. The legal capacity of a legal entity in a sphere of activities the involvement of which requires a license, shall arise from the moment of the procurement of such license and it shall cease at the moment of its revocation, the expiration of the term of its validity, or recognition of the license as void in accordance with the procedure established by the legislative acts.
Article 36. Rights of the founders (participants) to the property of legal entities formed by them
1. In regard to the separate property of legal entities, their founders (participants) may have obligatory or material rights.
2. The legal entities of which the participants shall retain obligatory rights to the assets shall be the business partnership and cooperatives.
3. The legal entities, to the property of which their participants shall retain the right of ownership or any other material right, shall mean organizations which possess the property on the basis of the right of business management or the right of operative administration.
4. The legal entities to the property of which their participants (founders) do not retain the property rights shall mean public associations, public funds and religious associations.
Article 37. Bodies of a legal entity
1. A legal entity shall acquire civil rights and it shall assume civil obligations through its bodies which are operative in accordance with the legislative acts and the foundation documents.
2. In the cases which are provided in legislative acts, a legal entity may acquire civil rights and assume civil obligations through its participants and representatives.
3. The types of procedure of appointing or relocating the bodies of a legal entity and their powers shall be determined in the foundation documents.
Article 38. The name of a legal entity
1. A legal entity shall have its name which distinguishes it from other legal entities. The name of a legal entity shall include its name and information on the organizational-legal form. It may include additional information which is provided for by legislation. The name of a legal entity shall be indicated in its foundation documents.
In the name of a legal entity it shall be prohibited to use names which contradict the requirements of legislation or the norms of public morals; the proper names of persons if they do not comply with the names of the participants or if the participants have not obtained the permission of those persons (their legal successors) to use the proper name; the designation of organization legal forms accepted in other countries; terms which are not provided by the present Code.
The use in the name of a legal entity of the indications of the official sate names and nations, (both full or abbreviated) is permitted in the order defined by the Government of Kazakstan.
2. A legal entity which is a commercial organization must have its trade name. A legal entity, the trade name of which is registered in accordance with the established procedure, shall have the exclusive right to its use. A person who illegitimately uses somebody else's registered commercial name, at the request of the owner of the right to the trade name ,shall be obliged to terminate the use of such name and compensate for the losses caused. The right of obligation of a legal entity which are associated with the use of a trade name shall be determined in the legislative acts.
Article 39. The place of location of a legal entity
1. The place of location of a legal entity shall be recognized as the place where its permanent operational body is located.
2. The place of location of a legal entity shall be indicated in its foundation document where its full postal address is written.
Article 40. The founders of a legal entity
1. A legal entity may be founded by one or several founders.
2. Founders of a legal entity may be the owners of the assets at the bodies and persons authorized with them and in the cases specifically provided in the legislative acts any other legal entities. In that respect the legal entities which own the property under the right of business competence or operative management may be the founders of other legal entities with the consent of the owner or the authorized
Article 46. Succession at the reorganization of a legal entity
1. When legal entities merge, the right and obligations of each of them are transferred to the newly emerged legal entity in accordance with the act of conveyance.
2. When a legal entity is joining another legal entity, the latter shall obtain the right and obligations of the joined legal entity in accordance with the act of conveyance.
3. When dividing a legal entity, its rights and obligations shall be transferred to the newly emerged legal entity in accordance with the division balance.
4. When allocating from the composition of a legal entity of one or several legal entities to each of them in accordance with the division balance go the rights and obligations of the reorganized legal entity.
5. When transforming a legal entity of one type into a legal entity of another type (change of organizational - legal form) the rights and obligations shall be transferred to the newly emerged legal entity in accordance with the conveyance act.
Article 47. The conveyance act and the division balance
1. The property right and obligation of reorganized legal entity shall be transferred to the newly created legal entity when merging and adjoining in accordance with the conveyance act and in division and separation in accordance with the division balance. The conveyance act and division balance must contain the provisions concerning the legal successorship in respect of any obligations of the reorganized legal entity in respect of all its creditors and debtors including the obligations which are be challenged by parties.
2. The conveyance act and division balance shall be confirmed by the owner of the property of the legal entity or the body which adopted the decisions of reorganized legal entity and they shall be presented together with the foundation documents for the registration of the newly emerged legal entity or the introduction of changes to the foundation documents of existing legal entities. The failure to present together with the foundation documents of the act on transfer or division balance and also the absence in them of provisions concerning legal succession in respect of the obligations of the reorganized legal entity shall result in the refusal of the state registration of the newly emerged legal entities.
3. The assets (rights and obligations) shall be transferred to the legal successor on the moment of its registration unless otherwise provide in legislative acts or the decision concerning reorganization.
Article 48. Guarantees of the rights of creditors in reorganization of a legal entity
1. The owner of the assets of the legal entity or the body which adopted the decision to reorganize the legal entity, are obliged to notify its creditors in writing of the reorganized legal entity.
2. When dividing or separating, a creditor of the reorganized legal entity shall have the right to demand a prior determination of the obligation, the debtor of which is the legal entity, and compensating the losses.
3. Where the division balance does not provide the opportunity to identify the legal successor of the reorganized legal entity the newly emerged legal entity shall bear solitary responsibility in respect of the obligation reorganized legal entity before its Creditor.
Article 49. The basis for the liquidation of a legal entity
1. Upon the decision of the owner of its property or the body authorized by the owner, and also upon the decision of the body of the legal entity, so authorized by the foundation documents, a legal entity can be liquidated on any basis;
2. Upon the decision of a court, a legal entity may be liquidated in the following cases:
1) bankruptcy;
2) recognition as invalid the registration of a legal entity in consequence of violations of the law which were allowed when forming it, and which have an incurable nature;
3) systematic realization of activity which contradict the authorized purposes of the legal entity;
4) realizing activities without appropriate permission (license) or activities prohibited by the legislative acts or repeated or serious violation of legislation;
5) in any other cases which are provided by legislative acts.
3. The claim to liquidate a legal entity on the grounds indicated in item two of paragraph one of this article may be presented to court by the state body to which the right to present such a requirement is granted by law and in the cases of bankruptcy also by a creditor. On the decision of the court to liquidate a legal entity, the obligations in respect of carrying out the liquidation of a legal entity may be delegated to the owner of its property, the body authorized by its owner, the body authorized to conduct the liquidation of the legal entity by its foundation documents or any other body (person) appointed by the court.
Article 50. Procedure for the liquidation of a legal entity
1. The owner of the assets of a legal entity, or the body which adopted the decision to liquidate a legal entity, shall be obliged to communicate that immediately in writing to the body of justice which conducts the registration of legal entities and which enter into the state register of legal entity the information concerning the fact that the legal entity is in the process of liquidation.
2. The owners of the assets of a legal entity, or the body which adopted the decision to liquidate a legal entity, shall appoint a liquidation commission and establish in accordance with the present Code, the procedure and dates for the liquidation. From the moment of the appointment of the liquidation commission, the powers in respect of managing the property and concluding transactions shall be transferred to it. The liquidation commission on behalf of the liquidating legal entity shall speak in the court.
3. The liquidate commission shall place in the press of municipal (regional) administration publications concerning the liquidation and the procedure and dates for making claims by creditors. That period may not be less than 2 months from the moment of publication of the liquidation. The liquidation commission shall adopt the measures to identify creditors and to collect the debts and also shall notify in writing notify the creditors of the legal entity of the liquidation.
4. Among the expiration of the term for presenting claims by the creditors, the liquidation commission shall compile the intermediate liquidation balance which contains the information concerning the composition of the assets of the liquidating legal entity, the list of claims declared by the creditors, as well as the results of their consideration. The intermediate liquidation balance shall be approved by the owner of the property legal entity or the body which adopted the decision for the liquidation of the legal entity.
5. Where the monetary resources which are available to the legal entity liquidation (except foreign institution) are insufficient for the satisfaction of the claims of creditors, the liquidation commission shall effect the 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. The payments of cash amounts to creditors of a legal entity in liquidation shall be carried out by the liquidation commission in the procedure of priority which is established by Article 51 of the present Code, in accordance with the intermediate liquidation balance starting from the date of its approval.
7. Upon the completion of settlements with the creditors, the liquidation commission shall compile the liquidation balance which shall be approved by the owner of the assets of the legal entity or the body which adopted the decision on the liquidation of the legal entity.
8. The assets which remain upon the satisfaction of requirements of the creditors shall be used for the purposes specified in the foundation documents .
9. In the case of a shortage of assets of a liquidating state enterprise, and in the case of a liquidating institution of the monetary resources for the satisfaction of the claims of creditors, the latter has the right to appeal to Court with the actions to satisfy remaining part of the requirements at the expense of the claims of the expense of the owner of the assets of the enterprise or the institution.
10. The liquidation of a legal entity shall be deemed accomplished, and the legal entity as having terminated its existence, upon the entry to that effect in the state register of legal entities.
Article 51. Satisfaction of creditor claims
1. When liquidating a legal entity, the claims of its creditors shall be satisfied in the following order:
1) In the first priority shall be satisfied the claims of citizens before whom the liquidated enterprise bears responsibility for causing harm to health and life by the way of capitalization of the corresponding payments by time. In the relevant timely payments, these periodical payments;
2) In second priority, the settlements shall be conducted in respect to labor payments to the persons who work in accordance with labor agreements and payments of remuneration according to authorship agreements;
3) In third priority, are satisfied the claims of creditors on obligations and secured with the pledge of property of the legal entity in liquidation;
4) In fourth priority, is satisfied the debt shall be repaid in respect of the compulsory payments to the budget and non-budgetary funds;
5) In fifth priority, are produced payments to the other creditors in accordance with legislative acts.
2. The requirements of each priority shall be satisfied upon the complete satisfaction of the claims of the previous priority.
3. When assets of the liquidated enterprise are not sufficient, they shall be distributed among the creditors of the relevant turn in proportion to the amount of in claims which is subject to satisfaction unless otherwise established by the law.
4. In the case of the refusal of the liquidation commission to satisfy the claims of a creditor or evasion of consideration, the creditor shall have the right, prior to the approval of the liquidation balance of the legal entity, to appeal to the court with a legal action against the liquidation commission. Upon the decision of the court, the requirements of a creditor may be satisfied at the expense of the remaining assets of the legal entity in liquidation.
5. The remaining assets, upon the satisfaction of the claims of creditors, shall be transferred to the owner or the founders (founders) who have material rights upon in respect of those assets obligatory rights in respect of the legal entity unless otherwise is provided in the legislation or foundation documents of the legal entity .
6. The claims of a creditor which are not satisfied because of the shortage of assets of the legal entity in liquidation, and also those which arc not claimed before the approval of the liquidation report, shall be deemed to be satisfied. Similarly the claims of creditors which are not recognized by the liquidation commission shall be deemed to be repaid if the creditor did not appeal with the suit in court, and the claims, which the satisfaction to the creditor for which has been rejected by the court.
Article 52. Bankruptcy
1. Bankruptcy shall mean a stable inability of a debtor of the individual entrepreneur or legal entity to satisfy the claims of its creditors and to pay taxes and other obligatory payments as a consequence of exceeding of the obligations of the debtor over his property.
2. The debtor shall be acknowledged bankrupt on the decision of a court.
Article 53. The basis of bankruptcy
1. Bankruptcy may be realized voluntarily or compulsorily.
2. The reason for voluntary bankruptcy is the statement of the debtor in court. The reason for initiation of proceedings on involuntary bankruptcy shall be the claim of the creditor (creditors).
3. External sign of bankruptcy serving as a sufficient reason for initiation of proceedings by the court on the bankruptcy according to the claim of the creditor (creditors) shall be suspension of payments by him at least on one of his obligations within three months from the moment the payment date comes.
4. The application which is submitted by the debtor to recognize him as insolvent may not be revoked without the appropriate decision of the a court. The application of a creditor(creditors) may be revoked prior to the adoption by the court of the decision on the recognition of the debtor as insolvent.
5. The decision on instituting of a liquidation procedure and to recognize the insolvent debtor as bankrupt is publish by the court in official press to the account of the debtor.
6. The basis, order and procedure for recognizing a debtor as bankrupt, are defined by the present Code and other legislative acts.
Article 54. Rehabilitation procedures on cases in bankruptcy
1. An insolvent debtor or the owner (representative of the owner) of his property may submit a petition to suspend the bankruptcy case and to undertake rehabilitation.
2. If there are no guarantees of the third party regarding satisfaction of the property claims of creditors towards the insolvent debtor and covering of the court expenses, the court may by means of publication in the press of the announcement on the tender of legal entities and citizens who wish to participate in the sanation of the insolvent debtor. If within one month such persons do not appear or their conditions of the participation in the sanation are not agreed by the debtor, the bankruptcy case of the insolvent debtor shall be subject to consideration according to the procedure provided in the legislative acts on bankruptcy.
3. An insolvent debtor, the owner of the property of the debtor, or the creditors may submit to the court a petition to establish an external management of the property of the debtor. Reason For determinations of external governing property of debtor is presence of real possibility to restore solvency by realization of part of its property and realization of other actions.
The procedure of the external management of the property of the debtor is established by legislative acts.
Article 55. Consequences of instituting liquidation proceedings
1. From the moment of instituting liquidation proceedings:
1) the insolvent debtor shall be prohibited to alienate (except for the cases where the permission to sell is granted by a meeting of the creditors), to transfer properties and repay debts;
2) the terms of all the debt obligations of the insolvent debtor shall be deemed to have expired;
3) the accrual of fines and interest shall terminate on all types of debts of the insolvent debtor;
4) all legislative restrictions on levying a recovery on the property of the insolvent debtor shall be withdrawn;
5) disputes of a property nature with the participation of the insolvent debtor being considered in the court shall terminate if decisions made on them have not entered the legal force.
2. All the claims of a property nature from that moment are to be presented to the debtor only within the framework of the liquidation of proceedings.
Article 56. Release of an insolvent debtor from debt
1. After the selling of properties the insolvent debtor shall be recognized as free from any debts.
2. An insolvent debtor shall not be released from the obligations in the event of:
1) if he has concealed or transferred part of his property for the reason to hide to another person within a year before the beginning of the liquidation proceedings;
2) concealed or falsified required reporting information including accounting books, documents.
Article 57. The termination of legal entity activity of a bankrupt
1. The recognition by the court of a legal entity as insolvent (bankrupt) shall cause its liquidation.
2. The enterprise activity of a bankrupt is deemed terminated from the moment of the exclusion of it from the state register of legal entities.
II. Business Partnerships
1. General provisions
Article 58. The fundamental provisions concerning a business partnership
1. A business partnership shall be recognized to be a commercial organization with the charter fund divided into shares investments) of the founders (participants). Properties created at the expense of the investments of the founders (participants) and also produced and acquired by the business partnership in the course its activities belongs to it under the right of ownership. In the events which are provided by the present Code, a business partnership may be created by one person, who becomes its sole participant.
2. Business partnerships may be created in the form of a general partnership, kommandit, limited liability partnership, partnership with additional liability, joint stock company.
3. General partnership and general partnership participants in the kommandit partnership are to be only people. In the full partnership shall be not less than two participants.
4. The foundation documents of a business partnership are the foundation agreement and the charter. must contain a part from the information indicated in paragraphs 3 and 4 of Article 41 of the present Code. The foundation document of a business partnership, which is founded by one person (one participant), is the charter.
5. The foundation documents of a business partnership (charter and constituent agreement) are subject to a notarial certificate.
6. The foundation documents of a business partnership are to contain, aside from the information specified in points 3 and 4 of Article 41 of the present Code, terms on the amount by share for each of the participants; on the amount, composition, terms and order of the contribution by them to the contributions to the company statutory capital; on the liability of the participants for the breach of the duties on contributing the contributions to the company statutory capital, as well as other information, as provided by legislative acts.
7. All persons concerned have the right to get familiar with the business partnership charter.
8. A business partnership can be a founder other economic companies with the exceptions as provided by legislative acts.
9. Business partnerships, except a joint stock company, has the right not to issue shares.
Article 59. Contributions to the property of a business partnership. The share of participant in charter fund and assets of a business partnership
1. The contribution to the business partnership charter capital are to be money, securities, buildings belongings, property rights, including intellectual property, and any other property. The monetary evaluation of a contribution by a participant or a business partnership may not be produced only on the agreement among the participants (founders) of a business partnership and it shall be subject to verification by independent audit.
2. The shares of all participants in the business partnership are proportional to their contribution to the charter capital unless otherwise provided in the foundation documents. A business partnership participant shall has the right to pledge and sell its share in the partnership property unless otherwise is provided in legislative acts or the foundation documents.
3. The order and terms of making the contributions to the charter capital, as well as the responsibility for the performance of obligations on forming the charter capital are established by legislative acts.
Article 60. Business partnership management
1. The supreme authority of a business partnership is the general meeting (meeting of the representatives) of its participants.
2. In a business partnership shall be created an executive body (collective and (or) individual) , which implements the current management of its activity and is accountable to the general meeting of its participants. The individual management body may not be elected from among its participants. As collective bodies may be created the following:
1) the board (directorate),
2) the supervisory commission,
3) the audit commission,
4) the monitoring council,
5) any other bodies upon the decision of the general meeting (meeting of representatives) of the business partnership participants.
3. The authority of the bodies of business partnership management, the procedure of their selection (appointment), as well as the procedure for their decisions making, shall be defined in accordance with the present Code, legislative acts and the foundation documents.
Article 61. The rights and obligations of business partnership participants
1. The participants of a business partnership have the right:
1) to participate in the management of the affairs of the business partnership in the manner determined in the foundation documents;
2) to obtain the information on business partnership activity and to review its documents in the manner established by the foundation documents;
3) to participate in the distribution of profit. The terms of the foundation documents which provide the removal of one or several participants from the participation in the distribution of profit shall be invalid;
4) to obtain in the event of the liquidation of the business partnership, the part of its property which corresponds to their share in the property of the partnership and which remains after the settlement with the creditors, or its value.
5) to exit the business partnership, in accordance with the established procedure, with obtaining the value of the share in the property of the business entity in proportion to the contribution made, unless otherwise is provided in the foundation documents. The participants of the business partnership may have any other rights which are provided in the legislative acts and foundation documents.
2. The participants of a business partnership shall be obliged to as follows:
1) to keep the requirements of the foundation documents;
2) to make contributions in the order, amounts, ways and upon the terms, provided in the foundation documents;
3) not to divulge information, which the business partnership has declared a commercial secret.
The founders of the business partnership may bear any other responsibilities which are provided in the foundation documents.
Article 62. Business partnership transformation
1. Business partnerships of one type may be transformed into business partnerships of any other type upon the decision of a general meeting of the participants in the events and in the order established by legislative acts.
2. When transforming, a general or a kommandit partnership into a joint stock company, limited liability partnership, or additional liability partnership, each full partner that became a participant of the joint stock company, limited liability partnership, or additional liability partnership shall carry for two years subsidiary liability with all his assets on the obligations which were transferred to the joint stock company, limited liability partnership, or additional liability partnership, from the general or kommandit partnership. The alienation by the former full partner of the shares that belong to him shall not exempt him from such liability.
2. Full Partnership (General Partnership)
Article 63. The basic provisions on a general partnership
1. A general partnership shall be a partnership the participants whereof in the case of insufficiency of the property of the general partnership shall carry joint liability on its obligations with all of his property.
2. A citizen can be a participant of only one full partnership. acquired assets which exceed in its value the losses incurred by the partnership.
Article 64. Charter fund of a general partnership
1. The amount of the charter fund of a general partnership is determined by its founders, but it may not be less than the minimum amount established by legislative acts.
2. The reduction of the charter fund of a general partnership shall be permitted after the notification to all of its creditors. The latter shall have the right in that case to demand a premature termination or execution of the appropriate obligations and compensation of the losses to them.
