Comment to article 199. The rights of the owner in relation to the property under the economic jurisdiction of the Civil Code of the Republic of Kazakhstan  

The owner of a state-owned enterprise is usually represented by authorized government agencies.

The state management bodies of republican state-owned enterprises, as well as the bodies exercising the functions of a subject of state property rights in relation to them, are ministries, state committees, departments and other state bodies (authorized bodies) authorized by the Government of the Republic of Kazakhstan.  

The state management bodies of municipal state-owned enterprises, as well as the bodies exercising the functions of a subject of state property rights in relation to them, are local executive bodies authorized to do so by the head of the local administration (authorized bodies) (art. 3 of the Decree on the State Enterprise).  

Individual rights of the owner may belong only to the bodies specified in the legislative acts. Thus, in accordance with paragraph 1 of Article 16 of the Decree on a State-owned Enterprise, "the reorganization and liquidation of a republican state-owned enterprise is carried out by decision of the Government of the Republic of Kazakhstan, and a municipal enterprise by decision of the head of the local administration. "The authorized body carries out the reorganization and liquidation of the enterprise."  

The commented article sets out the limits of the exercise by a state-owned enterprise of the right of economic management. All the rights listed in the article may be used by the owner or the body authorized to act on his behalf, both in the normal course of business and in cases where a state-owned enterprise does not ensure the effective use or safety of the property transferred to it. However, outside of these rights, the owner or the body authorized by the owner to act on his behalf does not have the right to dispose of property assigned to a state-owned enterprise without his consent.

Paragraph 1 of Article 13 of the Decree on a state-owned enterprise introduced an additional right of ownership. According to it, "for a state-owned enterprise, the fulfillment of a government order is mandatory. An enterprise has no right to refuse to conclude contracts as a buyer or seller of goods (works, services) if the conclusion of these contracts is provided for by an order from the state.".  

A republican state-owned enterprise is established by decision of the Government of the Republic of Kazakhstan, a municipal state-owned enterprise - by decision of the head of the local administration in accordance with the procedure established by the Government of the Republic of Kazakhstan. Accordingly, the authorized body acts as the founder of a state-owned enterprise.

The amount of the authorized capital of the enterprise is determined by the owner, but may not exceed the total value of the property transferred to the enterprise and be less than 10,000 monthly calculation indices established on the date of the state registration of the enterprise.

The authorized capital must be fully formed by the owner (founder) by the time of the state registration of the enterprise.  

The owner of the property, represented by an authorized body, appoints the head of the enterprise and dismisses him from office in accordance with the law, brings state orders to the enterprise and monitors their implementation, approves the standards for the distribution of its profits, authorizes the enterprise to make transactions with property that, in accordance with the law, require approval from the owner, sets the amount of official salaries of the head of the enterprise his deputies and the chief (senior) accountant, solves other issues within his competence.

In accordance with paragraph 2 of Article 27 of the Decree on a State-owned Enterprise, "the share of profit to be deducted to the owner of the enterprise is fixed in the profit distribution standard established annually by the authorized body in coordination with the Ministry of Finance of the Republic of Kazakhstan (respectively, with its local body) and transferred to the income of the relevant budget."

Article 45 of the Decree on a State-owned Enterprise provides for the possibility of transforming an enterprise based on the right of economic management. The transformation of a republican enterprise under the right of economic management into a state-owned enterprise is carried out by a decision of the Government of the Republic of Kazakhstan on the proposal of the authorized body, agreed with the Ministry of Finance of the Republic of Kazakhstan, the transformation of a municipal enterprise is carried out by a decision of the head of the local administration on the proposal of the authorized body, agreed with the relevant local body of the said ministry.

The decision on the transformation of an enterprise on the right of economic management and the creation of a state-owned enterprise on its basis is mandatory in the following cases::  

1) misuse of state property and money allocated to an enterprise under the right of economic management;  

2) lack of profit based on the results of the last two years;  

3) disposing of property related to fixed assets in violation of the rules established by the Decree on the State Enterprise.  

All expenses related to the transformation of an enterprise under the right of economic management into a state-owned enterprise, as well as settlements between the transformed enterprise and its creditors in the absence of sufficient funds from the enterprise, are carried out at the expense of the relevant budget.  

A state-owned enterprise created on the basis of an enterprise with the right of economic management is the legal successor of the transformed enterprise in terms of state property and funds previously allocated to it, as well as in terms of land use, nature management, use of mineral resources, provision of quotas, licenses and previously concluded contracts, if the latter correspond to the subject and purpose of the newly created state-owned enterprise.  

When an enterprise is transformed by right of economic management into a state-owned enterprise, the legal regime of the property assigned to it changes from the right of economic management to the right of operational management from the moment the decision on the transformation of the enterprise is made.  

Transactions (collateral, lease, and others) in respect of a republican state-owned enterprise, where the enterprise acts as a single property complex, with the exception of transactions on its alienation, are carried out by decision of the Government of the Republic of Kazakhstan, and in respect of a municipal enterprise - by decision of the head of the local administration (see paragraph 3, art. 12 of the Decree on the state Enterprise).

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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.