Commentary to article 50. The procedure for liquidation of a legal entity of the Civil Code of the Republic of Kazakhstan
The commented article regulates in detail the procedure for the liquidation of a legal entity. The liquidation commission is established by the founders of a legal entity or the body that made the decision on liquidation, and in cases of bankruptcy of a legal entity - by a court or a creditors' meeting. The liquidation Commission is the trustee of the property of the liquidated legal entity with the precise purpose of carrying out the liquidation procedure in accordance with the law.
The liquidation of a legal entity goes through several stages. The first is the establishment of time limits within which claims can be filed against a legal entity. The article establishes that this period may not be less than two months from the date of the announcement of liquidation.
The second stage of liquidation of a legal entity is the most difficult - it is taking all measures to recover accounts receivable to the legal entity and identify all creditors' claims. For these purposes, claims should be filed with debtors, and, if necessary, lawsuits in the courts.
For payments of money to creditors, see Article 51 of the Civil Code and its commentary.
In accordance with paragraph 1.2 of the Temporary Regulations on Non-cash Payments in the Republic of Kazakhstan, approved by the Board of the National Bank of the Republic of Kazakhstan on November 19, 1992, funds are debited from the accounts of enterprises by order of the owners of these accounts. The liquidation commission, which, from the moment of appointment, assumes the authority to manage the affairs of a legal entity, sends to the bank where the accounts of the liquidated legal entity are located an application for termination of funds debiting from accounts without the consent of the liquidation commission. Based on this statement, the bank stops further acceptance of executive and other documents on the account.
The article grants additional rights to creditors of state-owned enterprises and institutions if they do not have enough property and money to satisfy creditors' claims. For the first time, legislation has granted them the right to file a lawsuit to satisfy the remaining part of the claims at the expense of the owner of the property of this enterprise or institution (see also paragraph 3 of Article 207 of the Civil Code).
Paragraph 9 of the commented article allows for the possibility of foreclosing on creditors' debts on all property of a state-owned enterprise, and not only on its funds, as provided for in Articles 44 and 207 of the Civil Code. This inconsistency is eliminated by a systematic and logical interpretation of legislation. The Decree on a state-owned enterprise, where a special chapter 3 is devoted to state-owned enterprises, stipulates (Article 44) that a state-owned enterprise is liable for its obligations with the funds at its disposal. But here, an exception is made from this general rule, which is directly related to paragraph 9 of the commented article: "Foreclosure on the rest of the property of a state-owned enterprise is not allowed, except in cases of liquidation of this enterprise.".
Since the commented article talks about the liquidation of a state-owned enterprise, it justifiably allows foreclosure on all property of a state-owned enterprise, and not just on its funds.
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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.
