Commentary to article 41. Constituent documents of a legal entity of the Civil Code of the Republic of Kazakhstan
The founding documents include the founding agreement and the charter. The constituent documents serve as necessary prerequisites for the formation and operation of a legal entity and establish its regime. But there are important differences between these documents, which are part of the same "bundle", both in purpose and content of each of them.
The purpose of the founding agreement is to define the mutual rights and obligations of the founders. He lists all the founders, sets the share of each in the authorized capital and solves the most important issues of internal relationships: participation in management, profit distribution, consideration of votes in decision-making, etc.
The foundation agreement is an individual legal act. It often contains information that constitutes a trade secret.
Sometimes a founding agreement is called an agreement between a founder and his legal entity, which reflects their relationship on the powers of the founder, the obligations of the legal entity to transfer part of the profits to the founder, etc. Such agreements are not based on the law and are impractical, since the founder can resolve all such issues in the charter, which he approves individually.
A foundation agreement without a charter cannot serve as the basis for the formation of a legal entity.
Unlike a founding agreement, a charter is necessary for the internal organization of a legal entity's activities. It determines the procedure for the formation of its governing bodies and their competence, the legal status of officials and other issues.
The Charter does not mention individual names, it contains only norms and is a local normative act.
A number of provisions of the founding agreement are inevitably reproduced by the charter, for example, on the voting procedure, the procedure for forming governing bodies, etc.
In practice, contradictions sometimes arise between the founding agreement and the charter. Previously, the law did not define the procedure for their resolution. Now this procedure is established by paragraph 6 of the commented article.
Neither the founding agreement nor the articles of association are aimed at regulating the relationship of a legal entity with outside third parties, which (relationships) should be subject to the regulatory impact of the law, other regulations and the contract of a legal entity with a third party. This is especially important to note because third parties, when concluding contracts, are not always familiar with the charter and may not be aware of the division of competence between the various bodies of their business partner. Negative consequences may arise on this basis.
For example, a group of citizens who formed an LLP before the Civil Code came into force leased an abandoned plot of land from a farmer for 10 years. On the part of the landlord, the agreement was signed by the chairman of the cooperative that owns the site. Within two years, the tenants cleared the site, erected the necessary buildings and fully prepared the site for intensive operation. And then the lessor, the production cooperative, demanded through the court to invalidate the lease agreement, referring to the fact that, according to the cooperative's charter, a land lease agreement for a period of more than three years can be concluded by the chairman of the cooperative only with the consent of his board. There was no such agreement at the conclusion of this agreement. The arbitration court satisfied the claim. After the entry into force of the Civil Code, such a claim would not be subject to satisfaction, since a legal entity is responsible for the actions of its authorities, even if they go beyond their powers (paragraph 4 of Article 44 of the Civil Code).
Given the importance of familiarizing the business partners (including future ones) of a legal entity with the constituent documents, primarily with the charter, it is necessary to ensure the possibility of such familiarization. In practice, however, the management of a legal entity often avoids providing documents for review, citing confidentiality. This directly contradicts paragraph 7 of the commented article. This function of familiarization should also be performed by the registration authority, which contains the constituent documents with all subsequent amendments.
Unlike a charter, a foundation agreement can be a confidential document.
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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.
