Commentary to article 35. Legal capacity of a legal entity of the Civil Code of the Republic of Kazakhstan
The legal capacity of a legal entity (as well as an individual) is its ability to acquire rights and responsibilities in various spheres of public life. Since civil rights and obligations arise as a result of legal facts, primarily transactions made by legal entities, the content and boundaries of legal capacity are largely determined by the range of transactions that legal entities are entitled to make.
It is well known that previously existing legislation prohibited all legal entities from making transactions that were not permitted by them, that is, transactions that did not meet the established goals of their activities (art. 27 of the Civil Code of the Kazakh SSR). Violation of this rule led to the invalidity of such transactions (art. 48 of the old Civil Code). It was generally accepted, therefore, that legal entities, unlike citizens with general legal capacity, were endowed with special legal capacity.
With the adoption of the new Civil Code, the situation has changed radically. As noted in the commentary to Article 34 of the Civil Code, commercial legal entities can, as a rule, commit all non-prohibited acts, therefore, they have common and equal legal capacity.
The situation with non-commercial legal entities is different. Since they have the right to do only what is provided for by their charters, their legal capacity is special.
State-owned enterprises are in a special position. Enterprises whose property belongs to them by right of economic management have a narrower legal capacity than that possessed by non-governmental commercial legal entities (see art. 200 of the Civil Code, as well as the Decree on the State Enterprise).
Enterprises for which property is assigned by right of operational management (state-owned enterprises) are created to carry out only certain types of activities and therefore must be recognized as entities with special legal capacity (see chapter 3 of the same Decree).
In addition to the general boundaries of legal capacity, which apply to all legal entities formed in one form or another, the law restricts legal capacity for certain types of legal entities, taking into account the content of their activities. The restriction is carried out either by allowing certain legal entities to engage in certain activities, or, conversely, by prohibiting legal entities specified by law from engaging in certain types of activities.
For example, clause 3 of Article 1 of the Decree on Banks and Banking prohibits any legal entities that have not received the official status of a bank from calling themselves a bank and engaging in banking activities.
Here is an example of the opposite nature. In paragraph 2 of Article 2 of the Decree on Commodity Exchanges it says: "Exchanges are prohibited from carrying out trading, trade intermediation and any other activities not related to exchange trading".
The legal capacity of legal entities in the field of entrepreneurship (as well as the legal capacity of citizens) may be limited by the licensing system for certain types of activities.
As noted in Article 10 of the Civil Code, the production and sale of a number of goods and services for reasons of state security, law enforcement, environmental protection, property, life and health of citizens can only be carried out under state licenses. The list of activities requiring licensing, as well as the procedure for issuing licenses, are established by the Decree on Licensing with subsequent amendments and additions.
The Licensing Decree also establishes legislative grounds for refusal to issue a license, revocation, suspension and termination of its validity. A license, like any legal act, may be declared invalid.
Legislative acts regulating certain types of activities may provide for other grounds and a different procedure for revoking a license and suspending its validity (see, for example, the Decree on Oil, as well as the Decree of the President of the Republic of Kazakhstan, which has the force of Law, dated July 20, 1995 "On State Regulation of relations related to precious Metals and Precious Stones" and others).
The need to license certain types of activities requires clarifying the time of the emergence and termination of legal capacity of legal entities, as well as defining its boundaries.
As stated in the commented article, the legal capacity of a legal entity arises at the time of its creation and ceases at the time of its liquidation. But the rights to perform actions that require licensing are not included in the content of such legal capacity. Only after obtaining a license, these rights are introduced into the content of the legal capacity, expanding its boundaries. Upon recognition of the license as invalid, its termination, revocation or suspension of its validity, the content of the legal capacity of the legal entity returns to its former general boundaries.
Licenses are non-transferable and inalienable, except in cases where legislative acts provide otherwise.
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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.
