Commentary to article 67. Withdrawal of a participant from a full partnership of the Civil Code of the Republic of Kazakhstan
The participant has the right to withdraw from the general partnership and receive the value of his share of its property.
In the interests of the remaining members of the partnership, the rule has been established that one can withdraw from a full partnership established for a period of up to five years only if there is a valid reason, and one can withdraw from a partnership established without a deadline or for a period of more than five years by notifying the other participants at least six months in advance. before the actual exit. The constituent documents of a general partnership may provide for a different deadline for submitting an application by the participants for withdrawal from the partnership. The agreement between the participants of the general partnership on the waiver of the right to withdraw from the partnership is invalid (clauses 2 and 3 of art. 16 of the Decree on Business Partnerships). In addition to the general rule outlined above, the Decree on Business Partnerships establishes special provisions on the withdrawal of a participant from a full partnership upon recognition as legally incompetent, missing or with limited legal capacity.
If a participant in a general partnership is recognized as legally incompetent or missing, the guardian of this participant or his property may participate in the activities of the partnership only with the consent of all other participants in the partnership. The same consent of all participants of the partnership is required for participation in its activities of a participant recognized as having limited legal capacity. The guardian of a participant (or his property) recognized as legally incompetent or missing, or the trustee of a participant recognized as having limited legal capacity, may refuse to participate in the activities of a general partnership on behalf of this participant (art. 21 of the Decree on Business Partnerships).
The withdrawing participant has the right to demand that the partnership give him the value of a part of the property proportional to the share in the authorized capital. Settlements between the withdrawing participant and the general partnership must be made within one month from the date of the participant's actual withdrawal from the partnership.
The property transferred by the outgoing participant to the use of the general partnership is returned without remuneration, unless otherwise specified in the constituent documents, as amended by paragraph 6 of Article 17 of the Decree on Business Partnerships. It should be noted that this addition does not contradict the general dispositive orientation of the Civil Code.
A participant who has partially contributed to the authorized capital of a general partnership is paid only the value of this part of the contribution upon withdrawal, unless otherwise provided by the constituent documents or the agreement of the participants (clause 5, Article 17 of the Decree on Business Partnerships). Upon the withdrawal of a participant from a general partnership, the shares of the remaining participants should be increased in proportion to their original size, that is, the arithmetic expression of the share of the deceased increases to the shares of the remaining participants. However, a constituent agreement or an agreement of the participants may establish a different procedure for distributing this share, for example, equally (paragraph 7 of Article 17 of the Decree on Business Partnerships).
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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.
