Commentary to article 59. Contribution to the authorized capital of a business partnership. The participant's share in the authorized capital and property of the business partnership of the Civil Code of the Republic of Kazakhstan
The initial source of the formation of the property of a business partnership is the contributions of the founders, the totality of which forms the authorized capital of the partnership. The amount of the authorized capital is indicated in the constituent documents.
In addition to money , the contribution of the partnership participant is included .The national currency of the Republic of Kazakhstan and foreign currency may include securities, things, property rights, including claims, intellectual property and other property. The property contributed to the authorized capital of a business partnership must have a verifiable monetary value, which is reflected in the partnership's independent balance sheet (clause 2, Article 6 of the Decree on Business Partnerships).
The property of a business partnership is divided into shares that belong to the participants. If a participant has a share in the property of the partnership, it means that he retains binding rights to the property of the partnership within the limits of this share. The shares of participants in the property of a business partnership are calculated in percentage terms, and in a joint-stock company - by the number of shares (clause 2, Article 7 of the Decree on Business Partnerships).
The general rule established by the Civil Code is that the shares of participants in the property of a business partnership are proportional to their contributions. However, participants may establish a different procedure for determining their shares in the partnership's assets, with the exception of joint-stock companies, with all the legal consequences that follow from this, namely, a different procedure for voting, receiving dividends and property in the event of a participant's withdrawal or termination of the partnership's activities. Thus, two persons who have decided to establish a business partnership have the right to come to an agreement that they contribute an equal amount of property to the authorized capital, and their shares in the partnership's property amount to, for example, seventy percent for one, and thirty percent for the other.
The Civil Code grants the participants of the partnership the right to pledge and sell their share in its property. Restrictions on the disposal of shares may be established by legislative acts or constituent documents. Thus, in accordance with paragraph 2 of Article 80 of the Civil Code, the charter of an LLP may prohibit a participant from alienating his share (part of it) to third parties. In fact, such a ban contains paragraph 2 of art. 39 of the Decree on Subsoil, establishing that if the condition for issuing a license is a certain number of participants in a legal entity that has received a license, a change in the composition of participants without the consent of the licensing authority (that is, the alienation by one or more participants of their share) may serve as the basis for termination of the license.
The current version of the commented article contains a number of important changes.
Firstly, the previously mandatory independent audit of the monetary valuation of contributions to the authorized capital of participants in a business partnership has been abolished. Instead, a much simpler and cheaper procedure has been introduced, as outlined in the new version of paragraph 1.
Secondly, the responsibility of the partnership's participants for the correctness and reliability of determining the amount of the authorized capital has been strengthened.
Thirdly, the norm on the liability of a partnership for violating the procedure for reducing the authorized capital is formulated by a new paragraph 4 of the commented article as a general rule for all types of business partnerships.
The procedure and deadlines for making contributions to the authorized capital, as well as responsibility for non-fulfillment of obligations to form the authorized capital, are established by the Decree on Business Partnerships, the Law on LLP and other legislative acts.
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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.
