Comment to Article 48. Guarantees of creditors' rights of a legal entity during its reorganizationthe Civil Code of the Republic of Kazakhstan
The Government of the Republic of Kazakhstan is responsible for notifying creditors of the reorganization of the republican state enterprise, and the head of the local administration is responsible for the municipal enterprise. This situation is due to the fact that it is these bodies that decide on the reorganization of state-owned enterprises (part 1, paragraph 1, Article 16 of the Decree on the State Enterprise). Compulsory reorganization of a state-owned enterprise is possible by decision of a judicial or authorized state body. Accordingly, in this case, they are required to notify creditors. The bodies mentioned in this paragraph may transfer this responsibility to other state structures (authorized body).
The written method of notification, along with a letter, telegram, fax, also involves publication in a printed body. This publication must be official and cover all regions where creditors are located. The notification language must be known to all recipients.
The law does not provide for a deadline for notifying creditors of the reorganization of a state-owned enterprise, a production cooperative, an institution, a public association, a public foundation, or a religious association, but in any case it should be sufficient for creditors to make appropriate demands before approving the separation balance sheet or transfer act. In general, in practice, they adhere to a two-month deadline.
A special procedure for notifying creditors is provided for joint-stock companies. All types of reorganizations are carried out no earlier than two months after the publication of the notification in the official press. Creditors have the right, within three months from the moment when they learned or should have learned about the upcoming reorganization of the company, to file a claim against the company for early termination or fulfillment of relevant obligations and compensation for losses (clause 5 of art. 55 (previously 72) Decree on Business partnerships).
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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.
