Commentary to article 73. Contributor to the limited partnership of the Civil Code of the Republic of Kazakhstan
The sole obligation of the depositor, stipulated by the Civil Code, is to make an initial contribution and additional contributions (contributions) to the authorized capital of a limited partnership in the amount, manner and procedure provided for in the constituent documents. In addition, the Decree on Business Partnerships (paragraph 4 of Article 27) stipulates that in the cases specified in the constituent documents of a limited partnership, the depositor is obliged to assist the partnership in carrying out its activities, including providing services to it. The specification of the fulfillment of these duties should be contained in the constituent documents of the partnership. To do this, depositors of a limited partnership are charged with another obligation - to comply with the terms of the constituent documents (clause 4, Article 27 of the Decree on Business Partnerships).
The main interest of a depositor in a limited partnership is to make a profit on the invested capital and to preserve the binding rights to the partnership's property in the form of a share in its property. Accordingly, the Civil Code and the Decree on Business Partnerships define his rights.
Depositors, like general partners, have the right to receive a portion of the net income from the activities of the limited partnership in proportion to their share in the partnership's assets. The procedure for paying depositors a portion of the net income of a limited partnership is determined by the constituent documents. Thus, the founding documents of a partnership may provide for rules for preferential receipt of a portion of net income by depositors in comparison with general partners.
The interests of depositors are respected by granting them the right to review the financial statements of the partnership, as well as to require that they be able to verify their correctness. From these statements, the depositor can obtain information about the profit of the limited partnership, the share of profit owed to him, and other information determining the financial position of the partnership. The depositor has the right to get acquainted with the current documentation of the limited partnership and delve into the specific transactions of the partnership carried out by its executive bodies formed by general partners. Consequently, if the depositor is dissatisfied with the state of affairs, he has the right to appeal to the court against the specific actions of the general management partners of the partnership. The depositor has the right to transfer his share in the property and authorized capital of a limited partnership in accordance with the procedure provided for by the Decree on Business Partnerships, other legislative acts and constituent documents. According to paragraph 1 of art. 31 of the Decree on Business Partnerships, the transfer by a depositor of his share (part of a share) in the property of a limited partnership to other depositors, general partners or third parties is possible only with the consent of all general partners, unless otherwise provided by the constituent documents of the partnership. When a share is transferred, the entire set of rights and obligations belonging to the depositor is transferred, which leads to the termination of his participation in the limited partnership.
If the general partners refuse to transfer a share in the property of the limited partnership, the depositor has the right to exercise his other right - the right to withdraw from the partnership and receive the value of his share. Although the commented article speaks only about the possibility of the depositor receiving his contribution, however, the Decree on Business Partnerships establishes that the depositor owns a share in the property of the limited partnership, proportional to his contribution to the authorized capital (paragraph 4 of art. 28; paragraph 2 of art. 31). This provision does not contradict the Civil Code, as it strengthens the guarantees of depositors' rights. The share value is determined in the same order as when a full partner exits (Clause 2, Article 67 of the Civil Code).
The constituent documents of a limited partnership may provide for other rights of depositors. The waiver of these rights or their limitation is prohibited by the Civil Code.
This article does not answer the question of whether a depositor is entitled to reimbursement of expenses if he made a transaction in the interests of a limited partnership without proper authority, which was subsequently not approved by the partnership. In this case, the rule of paragraph 5 of Article 65 of the Civil Code applies, since in this respect the legal status of general partners and depositors is the same: neither the former nor the latter can directly represent the partnership, this function is performed by the executive bodies of the partnership.
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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.
