Commentary to article 71. Liquidation of the General Partnership of the Civil Code of the Republic of Kazakhstan
The liquidation of a general partnership is carried out on the general grounds of liquidation of legal entities specified in art. 49 of the Civil Code.
If the membership of a general partnership changes in certain cases established by the Civil Code and the Decree on Business Partnerships, the partnership is subject to liquidation. Such cases, in accordance with paragraph 1 of this Article of the Civil Code and paragraph 1 of Article 15 of the Decree on Business Partnerships, include cases of a participant withdrawing from a full partnership, declaring him bankrupt or foreclosing on his share of the partnership's property by a creditor (creditors), death of a participant in a full partnership, declaring him deceased, declaring him missing, incapacitated or with limited legal capacity. Only with the direct indication in the constituent documents or a special agreement of the remaining participants can the general partnership continue its activities in these cases.
Cases of changes in the membership of a general partnership that do not entail termination of its activities, in accordance with paragraph 2 of Article 15 of the Decree on Business Partnerships, include cases of transfer of a participant's share in the partnership's property to other participants or third parties, exclusion of a participant from the partnership or admission of new participants to the partnership.
Upon the withdrawal of a participant from a full partnership on the grounds specified in paragraph 2 of the commented article, the shares of the remaining participants in the authorized capital and, accordingly, in the property of the partnership must be increased, that is, the arithmetic expression of the share of the retired one increases to the shares of the remaining participants, unless otherwise established by the constituent documents of the partnership.
The original text of paragraph 3 of Article 58 of the Civil Code stipulated that a full partnership should have at least two participants. By the Law of March 2, 1998, this restriction was deleted from the text of the article. In addition, by changing paragraph 1 of Article 58 of the Civil Code, the Law of March 2 extended the possibility of forming an economic partnership by one person to all types of partnerships, i.e. to a full partnership.
At the same time, however, the text of the commented article was not changed, paragraph 1 of which retained the rule on the need to liquidate a full business partnership with one participant.
There was a contradiction between Articles 58 and 71 of the Civil Code. Since the rule on the possibility of a general partnership with one participant was established later, it should take precedence in accordance with paragraph 2 of Article 6 of the Law on Regulatory Legal Acts of March 24, 1998, and paragraph 1 of the commented article is not applicable.
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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.
