Civil bankruptcy cases of legal entities

             Bankruptcy is the debtor's insolvency recognized by a court decision, which is the basis for its liquidation.

In accordance with Article 4 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" (hereinafter referred to as the Law), bankruptcy is established voluntarily on the basis of a debtor's application to the court or forcibly on the basis of an application to the court of creditors or other persons authorized by this Law.

The basis for the debtor's application to the court for declaring him bankrupt is his insolvency in the absence of the possibility of restoring solvency.

At the same time, in accordance with paragraph 2 of Article 11 of the Law, the debtor is obliged to apply to the court for declaring him bankrupt in the following cases::

- when the owner of his property, the body authorized by him, or the body of a legal entity authorized to do so by the constituent documents, decides to liquidate it, and the value of the property is insufficient to satisfy creditors' claims in full.;

- if the satisfaction of the claims of one creditor or several creditors leads to the impossibility of fulfilling their monetary obligations in full to other creditors;

- within six months, apply to the court for declaring him bankrupt from the moment when the debtor learned or should have learned about the onset of insolvency.

The basis for the creditor's application to the court for declaring the debtor bankrupt is the debtor's insolvency, the conditions of which are specified in part 1 of Article 5 of the Law.

             Jurisdiction of cases on declaring a debtor bankrupt. According to part 2 of Article 3 of the Law and Article 313 of the CPC RK, bankruptcy cases of individual entrepreneurs and legal entities are considered by the court according to the general rules of civil procedure, with the specifics established by the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy.

Bankruptcy proceedings are initiated in court on the basis of an application from the debtor, the creditor (creditors), if there are grounds provided for in article 5 of the Law, the prosecutor in cases provided for in Article 47 of the Law, and the rehabilitation manager in cases provided for in article 82 of the Law.

The state revenue authority and other authorized state body with respect to taxes and other mandatory payments to the budget, as well as natural and legal persons who are creditors for civil and other obligations, have the right to file a creditor's application to the court for declaring the debtor bankrupt.

Bankruptcy proceedings are considered initiated from the moment the court issues a ruling on the acceptance of an application for declaring the debtor bankrupt. At the same time, the application submitted by the debtor, the rehabilitation manager for bankruptcy cannot be withdrawn without an appropriate court decision.

The applications of the creditor (creditors), except in cases of filing an application on the grounds provided for in article 82 of the Law (Termination of the rehabilitation procedure), may not be withdrawn by them before making a decision to declare the debtor bankrupt.

In accordance with Article 44 of the Law, a bankruptcy case may be initiated on the basis of a creditor's (creditors') application for civil and other obligations.

In our opinion, based on the meaning of art. 44 of the Law (bankruptcy proceedings may be initiated at the request of both a legal entity and an individual), part 2 of Article 3 of the Law (bankruptcy cases are considered by the court according to the general rules of civil procedure with the specifics established by this law), Article 313 of the CPC (bankruptcy cases of individual entrepreneurs and legal entities are considered by the court according to the general rules of civil procedure). according to the rules stipulated by this Code, with the specifics established by the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy), Bankruptcy cases, due to their specificity, must be considered by specialized 4 interdistrict economic courts.

In accordance with the provisions of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", a bankruptcy application for a legal entity can be filed by both the debtor and the creditor.

According to article 41 of the Law, the debtor's application is submitted to the court in writing, signed by the head of the debtor, a legal entity, or a person replacing him, in accordance with the constituent documents, and must contain the name of the court to which the application is submitted; justification for the inability to satisfy the creditors' claim; information about his property, including property encumbered by collateral, in property lease (lease) and (or) leasing, about money in bank accounts, account numbers and location of banks, a list of debtors indicating their location and the amount of their debt; information about obligations, term which have not been fulfilled; information on the relation of the activity to the sphere of natural monopoly or that the debtor is a market entity occupying a dominant (monopoly) position in the commodity market; a list of attached documents.

At the same time as submitting the application to the court, the debtor is obliged to send copies of the application and the documents attached to it to the authorized body. In case of non-compliance of the debtor's application for declaring him bankrupt with the above requirements, it is subject to refund.

In accordance with Article 44 of the Law, the creditor's (creditors') application must specify the name of the court to which the application is being submitted; last name, first name, patronymic (if any), place of residence of the debtor, an individual entrepreneur, or the name and location of the debtor, a legal entity.;

last name, first name, patronymic (if any), place of residence of the creditor, an individual, or the name and location of the creditor, a legal entity;

the debtor's obligation to the creditor (creditors) from which his claim arose, the term of performance of this obligation;

the nature and amount of the creditor's (creditors') claims against the debtor;

the amount owed on the obligation and the remuneration (interest) accrued on this amount, the penalty (fine, penalties) and losses to be recovered from the debtor;

legal requirements of the creditor; information known to the creditor about the debtor's existing property;

information that the debtor is absent when submitting an application for declaring the absent debtor bankrupt;

list of attached documents;

evidence of claims against the debtor; other information, if necessary, for the consideration of the bankruptcy case.

At the same time as submitting the application to the court, the creditor (creditors) is obliged to send copies of the application and the documents attached to it to the debtor or the authorized body.

A creditor's (creditors') application that does not comply with the requirements provided for in paragraphs 2 and 3 of Article 44 of the Law, as well as submitted without the necessary documents, is returned by the court without consideration.

So, by the definition of the Medeu District Court of the mountains.Almaty dated 13.01.2014 I.V. Sazhin's application for declaring Imperial XXXI LLP bankrupt was returned due to its non-compliance with paragraph 2 of Article 22 of the Bankruptcy Law, since it did not specify information known to the creditor about the debtor's property, evidence of claims against the debtor (paragraphs 8),10)).

In addition, according to Article 23 of the Law, the application must be accompanied by documents confirming payment of the state fee in the prescribed manner and amount, sending copies of the creditor's application and the documents attached to it to the debtor and the authorized body (paragraphs 1) and 2)).

According to subclause 13) of clause 1 of Article 535 of the Tax Code, a state fee of 500 percent is charged on applications for declaring legal entities bankrupt, whereas it can be seen from the attached receipt for payment of the state fee that the applicant paid the state fee in the amount of 8655 tenge.

By virtue of paragraph 5 of Article 22 of the Law "On Bankruptcy", a creditor's application that does not meet the requirements provided for in paragraphs 2 and 3 of this Article, as well as submitted without the necessary documents, is returned by the court without consideration.

In accordance with sub-paragraphs 6) and 7) of Article 1 of the Law, bankruptcy is recognized as the insolvency of a debtor recognized by a court decision, which is the basis for its liquidation. Bankruptcy procedure is a procedure carried out in order to satisfy creditors' claims at the expense of the bankrupt's estate in accordance with the procedure established by the laws of the Republic of Kazakhstan.

Bankruptcy proceedings are initiated in court on the basis of an application from the debtor, creditor (creditors), if there are grounds provided for in article 5 of the Law, and are considered initiated from the moment the court issues a ruling on the acceptance of an application for declaring the debtor bankrupt.

At the same time, the Law attaches certain importance to the form and content of the application, since, in accordance with Article 43 of the Law, applying to a court for bankruptcy that does not comply with the requirements of articles 41 and 42 is the basis for returning the application without consideration.

Having received the application for declaring the debtor bankrupt, the court, no later than five working days after receipt of the application, issues a ruling on the initiation of proceedings, copies of which are sent to the debtor, the applicant, the authorized body, the state and other bodies registering property rights, the regional chamber of private bailiffs and the territorial judicial authority at the location of the debtor.

While preparing the case for trial, the court sends copies of this ruling to the authorized body, the debtor, creditors, the prosecutor and other persons involved in the case.

It should be noted that during the generalization, the facts of violations of the deadlines for making determinations on the acceptance of applications for court proceedings and the initiation of bankruptcy proceedings, consideration of cases without making determinations on the initiation and appointment of proceedings have not been established. There were also no violations of the time limits for the consideration of cases in this category.

The ruling on the initiation of a case must contain the obligation of state and other bodies that register property rights to impose restrictions provided for in paragraph 1 of Article 50 of the Law.

So, by the definition of the specialized interdistrict economic court of the mountains. On September 04, 2014, the court accepted the application of JSC "National Center "Kurylyconsulting" for declaring JSC "Astana-Real Estate" bankrupt and a civil case was initiated against it.

The ruling issued by the court does not comply with the requirements of Article 48 of the Law, as it does not specify the obligation of state and other bodies that register property rights to impose restrictions provided for in paragraph 1 of Article 50 of the Law.

When considering bankruptcy cases, courts should carefully check whether the debtor is really insolvent, the conditions of which are specified in article 5 of the Law.

In accordance with paragraph 4 of Article 3 of the Law of the Republic of Kazakhstan dated January 21, 1997 "On Bankruptcy" (hereinafter referred to as the Law), bankruptcy cases are considered by the court if the creditor's claims for taxes and other mandatory payments to the budget for tax arrears, including those of the debtor's branches and representative offices, amount to at least one hundred and fifty monthly calculation indices. established by the law on the republican budget for the relevant fiscal year.

The Law of the Republic of Kazakhstan dated December 4, 2008 "On the Republican Budget" has established a monthly calculation index of 1,731 tenge since January 1, 2013. Accordingly, the amount of one hundred and fifty monthly calculation indices is 259,650 tenge.

The amount of tax debt owed by AVR-service LLP exceeds the specified amount. 52-53 of the Civil Code of the Republic of Kazakhstan defines that bankruptcy is the debtor's insolvency recognized by a court decision, which is the basis for its liquidation.; insolvency is defined as the inability of the debtor, an individual entrepreneur or a legal entity, established by the court, to fully satisfy creditors' claims for monetary obligations, to make payroll payments with persons working under an employment contract, to ensure the payment of taxes and other mandatory payments to the budget, social contributions to the State Social Insurance Fund, as well as mandatory pension contributions; bankruptcy recognition is possible on a voluntary or compulsory basis; compulsory bankruptcy recognition is carried out on the basis of a creditor's application to the court.

According to paragraph 1 of Article 28 of the Law of the Republic of Kazakhstan dated January 31, 2006 "On Private Entrepreneurship", a private business entity is declared bankrupt by a court decision on the basis of a debtor's application to the court or on the basis of a creditor's application to the court, and in cases provided for by the laws of the Republic of Kazakhstan, and other persons.

In accordance with paragraph 2 of Article 3 of the Law "On Bankruptcy", the basis for the debtor's application to the court for declaring him bankrupt is his insolvency in the absence of the possibility of its restoration.

According to Article 36 of the Law, a court decision declaring a debtor bankrupt and initiating bankruptcy proceedings is made by the court in the following cases::

1) the debtor's inability to prove his worth during the court proceedings within two months from the date of the initiation of the case;

2) the presence of declarations of insolvency in the debtor's withdrawal within no later than thirty days from the date of initiation of the case, accompanied by documents confirming its insolvency;

3) the debtor submits an application for declaring him bankrupt no later than ten days after the initiation of the case, accompanied by documents confirming his insolvency.

According to paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application of bankruptcy legislation by courts of the Republic of Kazakhstan" dated 04/28/2000, the debtor's revocation recognizes his own insolvency no later than thirty days from the date of initiation of the case, or the debtor submits an application for declaring him bankrupt within ten days from the date of initiation of the bankruptcy case in accordance with according to paragraphs 1-2), 1-3) of Article 36 of the Law "On Bankruptcy" is the basis for declaring the debtor bankrupt.

Upon receipt of a confession or statement from the debtor, the courts should necessarily verify the authority of the person who signed the review or statement.

The court's decision to declare the debtor bankrupt, based on his recognition of his insolvency, must contain information about the debtor's financial condition, as well as a reasonable assessment of the debtor's substantive solvency.

In accordance with paragraph 3 of Article 4 of the Law, in the cases established by this Law, the debtor is obliged to apply to the court for declaring him bankrupt.

According to paragraph 2 of Article 5 of the Law, the basis for the debtor's application to the court for declaring him bankrupt is his insolvency in the absence of the possibility of restoring solvency.

The form and content of the debtor's application for declaring him bankrupt are specified in article 41 of the Law, the documents attached to it are specified in Article 42.

The debtor's application to the court for declaring him bankrupt, which does not comply with the requirements provided for in articles 41 and 42 of the Law, is the basis for his return without consideration.

In the case when applying to the court for declaring him bankrupt is mandatory for the debtor and the necessary documents are not attached to the application, such an application is accepted by the court for production, and the missing documents are claimed by the court in order to prepare the case for trial.

In accordance with paragraph 3 of Article 48 of the Law, the court, within two working days from the date of the ruling on the initiation of the case, issues a ruling on the appointment of a temporary administrator from among the persons registered with the authorized body, information about which is posted on the body's Internet resource on the date of the ruling.

Based on the results of collecting information about the debtor's financial condition, the interim manager draws up an analytical conclusion, which, when considering the case on its merits, is one of the proofs of the debtor's solvency or insolvency.

In accordance with Article 57 of the Law, a decision on declaring a debtor bankrupt and liquidating it without initiating bankruptcy proceedings is made by a court with the consent of the authorized body in respect of the absent debtor, taking into account the conclusion of the interim administrator on the absence of the debtor at the address indicated in the application for declaring the debtor bankrupt, and on the absence of property (assets) at the expense of which it is possible to carry out bankruptcy procedure. The liquidation of an absent debtor without initiating bankruptcy proceedings is carried out by the authorized body in accordance with the procedure established by Article 118 of the Law.

When assigning the liquidation procedure of an absent debtor to an authorized body, in accordance with paragraph 2 of Article 57 of the Law, the rights and duties of the administrator (subparagraph 3) of Article 1 of the Law – temporary administrator, rehabilitation, temporary and bankruptcy managers appointed in accordance with the established procedure during the consideration of cases in court and the conduct of rehabilitation procedures and procedures - are transferred to the authorized body. bankruptcy proceedings) provided for by Law.

In the event of the absence of assets from the bankrupt, as well as transactions subject to invalidation in accordance with Article 7 of the Law, the authorized body is obliged to submit a final report and a liquidation balance sheet to the creditors' meeting for approval within one month, and submit the final report and liquidation balance sheet to the court for approval within two working days from the date of approval with the creditors' meeting., within three working days after the court approves the final report, close the bank accounts and submit to the state revenue authority the forms of the taxpayer's certificate and the certificate of registration for value added tax (if any).

If, during the liquidation of the debtor, the estate is identified and (or) the return of previously withdrawn property to the estate, the authorized body is obliged to apply to the court for a review of the court's decision declaring the debtor bankrupt without initiating bankruptcy proceedings due to newly discovered circumstances.

It seems that a review of the court's decision to declare the debtor bankrupt without initiating bankruptcy proceedings due to newly discovered circumstances is possible on the basis of subparagraph 1) of Article 404 of the CPC, since the identification of the debtor's estate during the liquidation and (or) the return to the estate of previously withdrawn property are essential circumstances for the case, which were not and could not be known to the applicant.

Thus, the bankrupt manager of Elexia LLP, Baibulatov B.I., applied to the court for a review of the decision of the specialized interdistrict economic court of the Zhambyl region dated 09/15/2014. on the recognition of Elexia LLP as bankrupt due to newly discovered circumstances, on the grounds that the application for declaring the debtor bankrupt was signed and filed with the court not by the head of the debtor himself, but by his representative, the founder of the LLP and its head, Abilmazhan S. He has been wanted for a long time due to the failure to submit tax reports and the failure to comply with notifications from the tax authority, the management body of the legal entity indicated in the constituent and registration documents is missing, the debtor's debt to the budget is over 23,000,000 tenge.

In addition, the bankrupt manager indicated that Elexia LLP should be liquidated as an absent debtor.

According to Article 47 of the Law, the prosecutor applies to the court for declaring the debtor bankrupt when he finds signs of deliberate bankruptcy, in the interests of the creditor – the Republic of Kazakhstan, government agencies.

In this case, the prosecutor's application is submitted to the court in compliance with the requirements provided for by this Law in respect of the creditor, unless otherwise provided for by legislative acts of the Republic of Kazakhstan or follows from the substance of the legal relationship.

This provision is consistent with the provision of part 3 of Article 55 of the CPC that the prosecutor has the right to apply to the court with a claim, a statement on the protection of the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations, public or state interests.

From the meaning of paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 1 "On certain issues of the application of legislation on pseudo-entrepreneurship", pseudo-enterprises are not subject to liquidation on the grounds of bankruptcy.

             55 of the Law, having considered a bankruptcy case at a court hearing, the court may adopt one of the following judicial acts: a decision to declare the debtor bankrupt and liquidate it with the initiation of bankruptcy proceedings; a decision to declare the debtor bankrupt and liquidate it without initiating bankruptcy proceedings; a decision to refuse to declare the debtor bankrupt. The decision to declare the debtor bankrupt at the request of the creditor or the prosecutor and its liquidation with the initiation of bankruptcy proceedings is made taking into account the conclusion of the interim manager on the debtor's insolvency and the existence of grounds for declaring him bankrupt, as well as in the case of failure to provide the interim manager with access to accounting documents, which prevented the preparation of an opinion.

The content of bankruptcy court decisions is determined by articles 56-58 of the Law. In addition, the bankruptcy court's decision must comply with the requirements of Articles 217-221 of the CPC, as well as the requirements of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On the court decision".

The issue of the jurisdiction of civil cases on declaring a debtor bankrupt should be resolved in accordance with the provision of article 44 of the Law, according to which bankruptcy proceedings can be initiated at the request of both a legal entity and an individual, while proceeding from the meaning of part 2 of Article 3 of the Law (bankruptcy cases are considered by the court according to the general rules of civil procedure with special features established by this law), Article 313 of the CPC (bankruptcy cases of individual entrepreneurs and legal entities are considered by the court according to the general rules, provided for by this Code, with the specifics established by the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy)

In order for the court to objectively and comprehensively examine the issue of the debtor's insolvency, the bankruptcy case should be considered with the mandatory participation of the authorized body, the insolvent debtor, the owner of the bankrupt's property, the creditor and the temporary manager.

The court's decision to declare an insolvent debtor bankrupt must comply with the requirements of Articles 55-58 of the Law "On Rehabilitation and Bankruptcy", Articles 217-221 of the CPC, and the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On Judicial Decision".

The court's decision should provide an analysis of evidence of the debtor's financial insolvency or solvency, and therefore the court concluded that it had satisfied or refused to satisfy the application for declaring the insolvent debtor bankrupt.

             Legislation applicable to the consideration of civil bankruptcy cases of legal entities.

The legislation of the Republic of Kazakhstan on bankruptcy of legal entities is based on the Constitution of the Republic of Kazakhstan and consists of the Civil Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" dated March 07, 2014 No. 176 – V SAM, Regulatory Decree of the Supreme Court of the Republic of Kazakhstan No. 3 dated April 28, 2000. (as amended and supplemented by regulatory rulings of the Supreme Court of the Republic of Kazakhstan No. 14 dated June 28, 2002 and No. 11 dated December 22, 2008) "On certain issues of the application of bankruptcy legislation by courts of the Republic of Kazakhstan", other laws and regulatory legal acts establishing the specifics of the application of bankruptcy procedures in relation to individual business entities.

The Law of the Republic of Kazakhstan "On Bankruptcy" applies to civil cases initiated before the enactment of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" dated March 07, 2014 No. 176 – V SAM. If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", the rules of the international treaty shall apply.

The Law "On Rehabilitation and Bankruptcy" applies to cases of accelerated rehabilitation and rehabilitation of legal entities, bankruptcy of individual entrepreneurs and legal entities, except for state-owned enterprises and institutions, accumulative pension funds, banks, insurance (reinsurance) organizations.

If a court decides to declare a bank, insurance (reinsurance) organization, or accumulative pension fund bankrupt, their liquidation is carried out in accordance with the banking legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on insurance and insurance activities, as well as pension provision.

The specifics of the bankruptcy procedure in relation to cotton processing organizations, grain receiving enterprises, as well as natural monopoly entities or market entities occupying a dominant or monopolistic position in the relevant commodity market may be established by the legislation of the Republic of Kazakhstan.

This law applies to the bankruptcy of individual entrepreneurs in the part not regulated by the legislation of the Republic of Kazakhstan on private entrepreneurship.

 

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