Commentary to article 40. The founders of the legal entity of the Civil Code of the Republic of Kazakhstan
The founders of a legal entity are the initiators of its creation and the direct creators. The founders can be both legal entities and citizens. However, some legal entities can only be created by citizens (general partnership - clause 3 of Article 58 of the Civil Code), others - only by legal entities (Article 110 of the Civil Code).
The founders cover all expenses related to the establishment of a legal entity with their own funds. All contracts in the interests of the future legal entity (rental of premises for activities, purchase of inventory and office equipment) are concluded by the founders on their own behalf, since the legal entity as a legal entity does not yet exist. For this reason, the founders are jointly and severally responsible for the non-fulfillment or improper fulfillment of such agreements.
But as soon as a legal entity is formed, its supreme governing body (usually the general meeting) decides to transfer to the legal entity all obligations and all responsibility for the actions of the founders committed in the interests of the legal entity before its creation, if, of course, such actions were appropriate.
The founders of a legal entity retain their status even after the formation of a legal entity, continuing to manage its affairs. They can already be called participants. However, the composition of the participants may vary. Persons newly admitted to the membership acquire the same rights (to participate in management, receive dividends, and share in property after the liquidation of the legal entity) as the original founders, unless otherwise established by the constituent documents or the decision of the supreme governing body of the legal entity. A change in the composition of the founders does not mean the reorganization of a legal entity (for reorganization, see art. 45 of the Civil Code).
The founders (participants) of a legal entity should be distinguished from its employees and officials who receive remuneration for their work, perform actions within their official competence that give rise to rights and obligations for the legal entity, but are not entitled to participate with the right to vote in the general meeting of participants, receive dividends, etc., unless otherwise provided. constituent documents or a resolution of the general meeting.
In turn, the founders (participants) can be workers, employees, and officials of a legal entity. And they bear all labor rights and obligations that are not confused with the rights and obligations of the founder (participant) of a legal entity.
All the above considerations do not apply to the legal status of the founders of state-owned enterprises and institutions, where the state acts as the owner of the property of the legal entities it forms and does not merge with these legal entities in the future, continuing to manage them "from above" - using the methods established by 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.
