Commentary to article 80. Transfer of a share in the authorized capital of a limited liability partnership to another person of the Civil Code of the Republic of Kazakhstan
The new edition of the commented article defines more clearly than the previous edition the conditions and procedure for disposing of participants of their shares in the LLP's property.
The participant of the LLP has the right to dispose of his share (part of the share) in the property of the partnership at his discretion in accordance with the requirements of the Civil Code, the Decree on Business Partnerships and constituent documents. He may sell, donate, or bequeath his share or part of it to one or more members of the LLP.
If the founding documents of the partnership do not contain a corresponding prohibition, then alienation of the share to third parties is allowed. In this case, the participants shall enjoy the pre-emptive right to purchase this share (part of it) in proportion to the size of their shares in the property of the partnership, unless otherwise provided by the constituent documents or the agreement of the participants. The purchase is carried out on the same terms that could be agreed with a third party. In this regard, the participant must first of all offer his share to other participants, and if the latter refused, the participant's share may be alienated to any third party. When exercising the pre-emptive right to purchase, it is not necessary that all participants in the partnership act as buyers: in the absence of objections from other participants, the share can be acquired by one or more participants.
The Civil Code provides for the possibility of a situation where a participant in an LLP wishes to sell his share, but in accordance with the constituent documents does not have the right to alienate it to a third party, and other participants in the partnership do not wish to buy the alienated share. In this case, the LLP is obliged to pay the participant the actual value of its share.
The participant's share in the property can be acquired by the LLP itself. The Civil Code obliges the LLP to sell the share acquired in this way to other participants of the partnership or to third parties within the time limits established by legislative acts or constituent documents. The law does not set these deadlines. If these deadlines are not specified in the constituent documents, the partnership is obliged to sell the share within a reasonable period of time. During this period, the distribution of net income, as well as voting in the supreme body of the LLP, is carried out without taking into account the share acquired by the partnership. If the share is not realized, the LLP is obliged to reduce, by notifying the creditors of the partnership, the authorized capital by the amount of this share, which is stipulated by the requirement of art. 371 of the Civil Code on termination of the obligation due to the coincidence of the debtor and the creditor in one person.
In the order of succession, the participant's share in the LLP's property passes to the heirs of citizens and to the legal successors of legal entities that were participants in the partnership. The founding documents of an LLP may provide that such a transition is allowed only with the consent of the other participants. If no consent is obtained, the partnership is obliged to pay the heirs (legal successors) the actual value of the share or to give out property in kind for such a value. The procedure and conditions for such payment and disbursement of property are determined by the Decree on Business Partnerships, other legislative acts and the founding documents of the partnership.
At the same time, if a deceased or declared deceased citizen-a participant in an LLP or a legal entity-a participant in a partnership that has ceased its activities has not fully contributed to the authorized capital, then their legal successor (heir) is paid only the amount of the contributed part of the contribution, unless otherwise established by the constituent documents.
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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.
