Commentary to article 33. The concept of a legal entity The Civil Code of the Republic of Kazakhstan
The fundamental feature of a legal entity is its property isolation and the resulting independent property liability for its obligations.
Legal entities are formed in many areas of social and economic activity, but the necessity and importance of this institution is primarily determined by the fact that it allows you to separate the subject of property relations from those who formed a legal entity. And since a legal entity is an independent and financially separate entity of rights and obligations, its founders, as a rule, are not responsible for its debts. (As well as legal entities are not responsible for the debts of the founders).
The founders of a legal entity have the opportunity to limit their business risk to the amounts they consider acceptable. Thus, a legal entity is of practical importance, first of all, for property civil law relations.
The property isolation of a legal entity is manifested in the assignment of property to it, which (sometimes within the established limits) the legal entity has the right to dispose of. The form of attachment varies. Most often, this is a form in which property belongs to a legal entity by right of ownership, therefore, a legal entity has all the rights and obligations inherent in the owner in relation to this property (see art. 188 of the Civil Code and commentary to it). In other cases, the property belongs to a legal entity by right of economic management. These can only be state-owned enterprises. Since the ownership of the same property belongs to the owner, the right to dispose of the company's property has certain restrictions (see Chapter 9 of the Civil Code and the commentary to it). The right of ownership and use is reserved to the legal entity in full.
Finally, for some legal entities, also mostly state-owned, property is assigned the right of operational management. Such rights in terms of disposal are even more limited even in comparison with the right of economic management (see Chapter 10 of the Civil Code and its commentary). But in all cases, the property:
a) belongs to a legal entity;
b) serves as the material basis of his independent activity;
c) the consolidation is fixed by the independent balance sheet of this legal entity (independent estimate);
d) property (in addition to what is assigned to a legal entity by the right of operational management) serves as a source of repayment of debts and material liability of a legal entity for its obligations with other entities.
According to its obligations, a legal entity is responsible for all the property belonging to it, i.e. not only what belongs to it on the basis of property rights, but also what is covered by its binding powers, for example, money owed to the legal entity by other persons.
A legal entity acts in civil turnover, that is, in all property (in some cases, non-property) legal relations on its own behalf. A legal entity cannot act on behalf of its head, or creator, or the State, but only on its own behalf - on behalf of the legal entity as such. This is of great practical importance, because it allows you to accurately determine the true subject of rights, duties, and responsibilities.
Thus, in one arbitration case, it was established that the director of the state farm had issued a guarantee on behalf of the state farm. After some time, the director of the state farm was replaced by another person. When it became necessary to fulfill the guarantee obligation, the new director declared the invalidity of the guarantee letter signed by his (director's) predecessor. The Commercial Court, in its decision on this case, indicated that the director is the body of a legal entity (see Article 37 of the Civil Code and its commentary), which acts in civil turnover on its behalf.; the obligation arose not from the director, but from a legal entity; it is not the director who should be responsible for the obligation, but a legal entity. Therefore, the replacement of the director does not affect either the validity of the obligation, its enforceability, or responsibility for non-fulfillment.
The commented article says that a legal entity must have a seal with its name. The seal confirms, if necessary, that the document is actually issued by this legal entity, therefore it serves as a means of individualizing the legal entity in civil circulation.
The law also speaks about other means of individualization of a legal entity (name, trademark, etc.), but they will be discussed below.
No collective entity that does not have the characteristics of property isolation, independent property responsibility and the right to act in circulation on its own behalf can be recognized as a legal entity, that is, it cannot be a subject of civil law relations.
The law refers to a legal entity as an organization. An organization is usually understood as a collective of citizens, a group of citizens, therefore it (the organization) is opposed to an individual entity, an individual. The previous Civil Code did not allow the existence of a legal entity consisting of one participant. This Civil Code has changed this provision and recognized the possibility of forming certain legal entities with only one participant (see Articles 58, 77, 85 of the Civil Code; paragraph 5 of Article 3 of the Decree on Business Partnerships; paragraph 1 of Article 2 of the LLP Law).
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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.
