Commentary to article 92. Management of a joint-stock company of the Civil Code of the Republic of Kazakhstan
The management bodies of the JSC and control over its activities are:
1) the supreme governing body is the General Meeting of Shareholders;
2) the supervisory body is the Supervisory Board;
3) executive body - management board, directorate;
4) the control body is the audit commission.
Members of the Management Board (except the President of the company) and the audit commission may not simultaneously perform the duties of members of the Supervisory Board (clause 2 of art. 48 (previously 65) of the Decree on Business Partnerships).
The supreme governing body of a joint-stock company is the general meeting of shareholders, in which the democratic possibilities of this type of business partnership are most fully realized. The procedure for holding a general meeting of shareholders by the company is determined by the Decree on Business Partnerships. According to it, the JSC holds a general meeting of shareholders once a year, independently of other meetings. No more than 15 months may pass between the general annual meetings. Annual Meeting of Shareholders:
1) approves the management Board's report, annual balance sheet, and net income and loss account;
2) elects members of the Management Board and other senior employees of the company;
3) appoints an auditor and sets remuneration for him.
All meetings, except the annual one, are extraordinary. Extraordinary meetings are convened by the company's Management Board, the Audit Commission, or shareholders holding at least 20 percent of the shares. The owners of the shares will be personally notified of the upcoming convocation of the general meeting by registered mail to the address indicated in the register of shareholders. The notification of the extraordinary meeting must contain the wording of the issue to be discussed. The notification is sent to all shareholders who have paid all contributions on ordinary shares, as well as to the company's auditor. In addition, a general press notice should be issued indicating the time and place of the meeting and the agenda. The specified notification must be made at least twenty days before the convocation of the general meeting of the open company and at least ten days before the convocation of the closed company. The General Meeting is not entitled to make decisions on issues not included in the agenda, unless the opposite decision is taken unanimously at a meeting where all shareholders of the company are represented. If the deadline was shorter or no notification of the convocation of the meeting was sent, the decisions of the meeting will have legal force if they are adopted unanimously, provided that all shareholders of the company are represented at the meeting. The shareholders' meeting may be held at a place determined by the company's articles of association.
The General Meeting is recognized as valid if more than 50 percent of shareholders or their legal representatives (by the number of shares) participate in it, having more than 60 percent of votes in accordance with the charter (exception, in accordance with the Law of the Republic of Kazakhstan "On Amendments to the Decree of the President of the Republic of Kazakhstan, having the force of law, "On Business Partnerships" on the preparation and holding of the General Meeting of Shareholders of Investment privatization funds" dated July 14, 1997, constitute the general meetings of shareholders of investment privatization funds, recognized as eligible for any number of shareholders who participated in the voting). In the absence of a quorum, the management Board is obliged to reconvene the general meeting of shareholders, which is authorized to make decisions with any number of shareholders present. In order to make decisions on issues for which, in accordance with the Decree on Business Partnerships, the consent of a qualified majority of shareholders from the total number of their votes is required, the quorum is determined based on the amount of votes required to make this decision. Voting at the general meeting is conducted according to the "one share - one vote" principle. The articles of association of a closed company may provide for a maximum number of votes that each shareholder is entitled to have.
In accordance with the Law of the Republic of Kazakhstan "On Amendments to the Decree of the President of the Republic of Kazakhstan, which has the force of law, "On Business Partnerships" on the preparation and holding of the general meeting of shareholders of investment privatization funds" dated July 14, 1997. voting at the general meeting of shareholders of the investment privatization fund is conducted in the form of absentee and mixed (in-person with the addition of absentee) voting by sending (distributing) absentee voting ballots, filling them out by shareholders or their legal representatives and sending them to the address of the investment privatization fund. The procedure for conducting absentee and mixed voting is determined by the Government of the Republic of Kazakhstan. Any shareholder has the right to attend general meetings in person or through a representative with a notarized power of attorney (only for open companies). Representatives of a legal entity are present at the general meeting on the basis of a power of attorney issued by them (clauses 3-5 of art. 48 (previously 65) of the Decree on Business Partnerships).
The exclusive competence of the general meeting established by the Civil Code provides shareholders with a decisive influence on determining the general direction of the JSC's activities, monitoring the activities of its executive bodies and resolving the issue of the very existence of the company.
In accordance with clause 1 of Article 48 (previously 65) of the Decree on Business Partnerships, decisions on certain issues falling within the exclusive competence of the general meeting of Shareholders must be taken by a qualified majority of votes, that is, by at least two thirds of the votes of the number of shareholders present at the meeting or their authorized representativesaccordance with clause 1 of Article 48 (previously 65) of the Decree on Business Partnerships, decisions on certain issues falling within the exclusive competence of the general meeting of Shareholders must be taken by a qualified majority of votes, that is, by at least two thirds of the votes of the number of shareholders present at the meeting or their authorized representatives. In this way, the general meeting elects the Supervisory Board, executive bodies, members of the audit commission (auditor) and /or the auditor of the company, decides on the early termination of their powers, as well as decisions on the consolidation and division of previously issued shares, the issue of additional shares.
The Charter of a joint-stock companThe Charter of a joint-stock company is approved by its founders, and its amendment falls within the exclusive competence of the general meeting of shareholders, as well as changing the size of the authorized capital - one of the most essential points of the charter. The General Meeting may decide on the reorganization or liquidation of the Joint-stock company. Decisions on these issues are taken by at least two-thirds of the total nDecisions on these issues are taken by at least two-thirds of the total number of shareholders' votes (an exception is made in accordance with the Law of the Republic of Kazakhstan "On Amendments to the Decree of the President of the Republic of Kazakhstan, which has the force of law, "On Business Partnerships" on the preparation and holding of the general meeting of shareholders of Investment Privatization Funds" dated July 14, 1997. the resolutions of the general meetings of shareholders of investment privatization funds, a resolutions of the general meetings of shareholders of investment privatization funds, adopted by at least two thirds of the votes of the number of shareholders or their authorized representatives who participated in the voting). Thus, in order to start voting on these issues, it is necessary to ensure the presence at the general meeting of 50 percent of shareholders or their legal representatives (according to the number of shares), who have at least two-thirds of the votes in accordance with the articles of association. In the absence of a quorum, the management Board is obliged to convene the following general meetings until one of them has the specified number of votes necessary to make decisions on these issues.
Decisions on all other issues must be made by a simple majority vote of the number of shareholders present at the general meeting or their representatives.
The Decree on Business Partnerships contains two contradictory provisions, according to which, on the one hand, a decision to increase (change) the authorized capital is taken at a general meeting by at least two-thirds of The Decree on Business Partnerships contains two contradictory provisions, according to which, on the one hand, a decision to increase (change) the authorized capital is taken at a general meeting by at least two-thirds of the total number of votes of shareholders, and on the other hand, a decision to issue additional shares, which is one of the ways The increase in the authorized capital must be adopted by at least two thirds of the votes of the number of shareholders present at the meeting or their representatives. It is necessary to amend the Decree on Business Partnerships. Both of these decisions must be made by a qualified majority of the total number of votes held by the shareholders.
The Company's Articles of Association may include the resolution of other issues of its activities within the exclusive competence of the General Meeting of Shareholders.
The General Meeting of Shareholders is not entitled to delegate its exclusive powers to the executive bodies of the JSC. The Civil Code and the Decree on Business Partnerships do not classify the supervisory board as the executive bodies of a joint-stock company, howeverThe General Meeting of Shareholders is not entitled to delegate its exclusive powers to the executive bodies of the JSC. The Civil Code and the Decree on Business Partnerships do not classify the supervisory board as the executive bodies of a joint-stock company, howeve, based on some provisions of these legislative acts, it should be assumed that the general meeting of shareholders cannot delegate to the supervisory Board the resolution of those issues of the company's activities that fall within its exclusive competence due to the requirements of the law. This is due to the fact that when these issues are referred to the supervisory board, shareholders who own common shares lose the opportunity to directly influence the activities of the Joint-stock company, with the exception of electing members of the supervisory board, and become closer in their legal status to the owners of preferred shares.
The Supervisory Board, being the supervisory management body of the JSC, is designed to monitor the activities of the company's executive bodies between general meetings of shareholders. The articles of association of a closed company, as well as an open company with up to five hundred shareholders, may provide that the company's activities are carried out without the formation of a supervisory board (clause 2 of art. 47 (previously 64) of the Decree on Business Partnerships).
The exclusive competence of the Supervisory Board is determined by the Charter of the JSC. In accordance with paragraph 1 of Article 51 (previously 68) of the Decree on Business Partnerships, the articles of association may provide that without the consent of the supervisory Board, the executive body of the company does not have the right to conclude particularly responsible business contracts, pledge agreements, guarantees, etc. Issues related to the exclusive competence of the Supervisory Board cannot be transferred to the decision of the company's executive bodies.
Members of the Supervisory Board are prohibited from acting on behalf of the JSC. All members of the Supervisory Board and other persons who are not members of the Management Board of the JSC, but carry out actions to manage it in accordance with the provisions of the charter, or authorized by a decision of the shareholders' meeting to carry out such actions for a certain period or in specific cases, are equated with members of the management board in respect of their rights, duties and responsibilities to the company and third parties. faces. At the same time, the approval of actions for the management of a joint-stock company or the authorization to commit such actions themselves are not actions for management (paragraphs 2 and 3 of art. 51 (previously 68) of the Decree on Business Partnerships).
Both shareholders and invited persons with special knowledge in various fields related to the activities of the Joint-Stock company can be elected to the Supervisory Board.
The current management of the JSC's activities is carried out by the executive body, which is accountable to the Supervisory Board and the general Meeting of Shareholders.
The Decree on Business Partnerships names only the management board as the executive management bodies of the Joint-stock company. The Civil Code specifies that the company's executive management body can be either collegial (board, directorate) or sole (director, CEO). In this regard, the provisions of the Decree on Business Partnerships concerning the management board should also apply to any executive management bodies of a joint-stock company, regardless of their name, as well as their type, taking into account their characteristics.
JSC is a large business association, the effective management of which is impossible without the creation of a collegial executive body. In practice, entrepreneurs usually create a management board headed by the president or chairman of the management board for the current management of the company's activities.
In the intervals between shareholders' meetings, the Management Board manages all the activities of the JSC within the competence granted to it by the charter, which includes resolving all issues that do not constitute the exclusive competence of other management bodies of the company, as defined by law or the charter. Every year, 20 days before the date of the shareholders' meeting, the management board must prepare an annual report, balance sheet, and net income and loss account and ensure that these materials are available for shareholders to review. The Management Board must submit the annual report, balance sheet and net income and loss account to the General Meeting of Shareholders. The annual report, balance sheet, and net income and loss account must be signed by all members of the Management Board and members of the Supervisory Board. In the absence of one or more signatures, a note should be made indicating the reasons for such absence. The company's Articles of Association must contain provisions on the management procedure of a joint-stock company in cases where one or more members of the Management Board are absent or otherwise unable to perform the functions assigned to them (paragraphs 1 and 2 of art. 49 (previously 66) of the Decree on Business Partnerships).
The members of the Management Board are employees of the Joint-Stock company, while, like the members of the Supervisory Board and the Audit Commission, in accordance with paragraph 1 of Article 52 (previously 69) of the Decree on Business Partnerships, they have the status of company officials. Unless otherwise provided by the charter of the JSC, the terms of remuneration of members of the Management Board are established by the Supervisory Board. Both shareholders and other persons may be elected to the Management Board. Initially, members of the management board are appointed by the constituent agreement, which, however, does not mean that they all necessarily have to be listed in the constituent agreement (this can be done, for example, by referring to the minutes of the constituent meeting), and then their election and dismissal takes place at the general meeting of shareholders (paragraphs 1 and 2 of art. 49 (previously 66) of the Decree on Business Partnerships).
The competence of the management bodies of the joint-stock company, as well as the procedure for their decision-making and speaking on behalf of the company, are determined by the Civil Code, the Decree on Business Partnerships, other legislative acts and constituent documents.
The Civil Code does not define the tasks and functions of the audit commission. These issues are addressed in the Decree on Business Partnerships. Unlike LLP, JSC is obliged, by virtue of the requirements of the law, to form an audit commission, whose function is to monitor the activities of the company's executive body on behalf of shareholders. The Audit Commission is established by the general meeting from among the shareholders. The Decree on Business Partnerships does not prohibit the company's audit commission from also including persons who, in accordance with legislative acts, have the right to engage in auditing activities, independent experts in the field of finance and accounting, and others. Inspections of the activities of the executive body of the JSC are carried out by the audit commission on behalf of the general meeting, on its own initiative or at the request of shareholders holding in aggregate more than 20 percent of shares. The working procedure and functions of the audit commission of a joint-stock company are determined by the provisions of the Decree on Business Partnerships governing the activities of the audit commission of an LLP, unless otherwise provided by the charter (paragraphs 1 and 2 of art. 50 (previously 67) 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.
