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Commentary to article 66. Transfer of a share (part of a share) of a participant in a full partnership of the Civil Code of the Republic of Kazakhstan
The Civil Code grants a participant in a full partnership the right to transfer his share or part of it in the partnership's property to other participants or to third parties. The decision on this issue is made with the unanimity of all participants (paragraph 1 of Article 18 of the Decree on Business Partnerships), since a trust relationship with a new participant may not arise. In case of refusal to transfer the share, this participant has the right to withdraw from the partnership in accordance with the procedure established by art. 67 of the Civil Code.
The transfer of a share (part of a share) entails the corresponding transfer of all rights and obligations of its former owner to the acquirer, including responsibility for the debts of the partnership.
The transfer of a participant's share in the property of a general partnership may also take place in the event of his death. A legal successor (heir) refers to a citizen who can join a partnership with the consent of the other participants and in the absence of legal prohibitions (for example, he is not a member of another full partnership). A legal entity or the state, represented by its competent authorities, may also be the legal successors of a deceased participant in a full partnership, but in this case it can only be a matter of allocating his share from the partnership, that is, resolving the issue of property in accordance with the rules of inheritance law.
The legal successor (heir) who joined the general partnership is responsible for the obligations of the deceased participant both to the partnership itself and to the creditors of the partnership. At the same time, it does not matter when these obligations arose and, in particular, whether the share in the property of the partnership is sufficient to cover the debts of the deceased participant, in contrast to the rule of inheritance law that the heir is responsible for the debts of the testator within the limits of the property transferred to him. Since the testator participant was fully jointly and severally liable for the debts of the partnership until his death, the same amount of responsibility exists for the heir.
If the legal successor (heir) refuses to join the general partnership or the participants refuse to admit him to the partnership, then he should be paid the value of his share in the property of the partnership on the basis of succession, determined in accordance with the balance sheet of the partnership drawn up at the time of the participant's death. This share is paid within thirty days from the date when the issue was resolved that the heir would not be a member of this partnership (paragraphs 4 of art. 18 and paragraphs 1 and 2 of art. 17 of the Decree on Business Partnerships).
By reducing the size of the property referred to in paragraph 5 of this article, it is meant a reduction in the authorized capital, which must be completed no later than three months from the date of withdrawal of the legal successor (heir) from the partnership. The constituent documents may provide for a shorter period.
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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.
