Initiation and preparation of rehabilitation or bankruptcy cases for trial of the persons involved in the case
Paragraph 3 of article 38 of the Law stipulates that rehabilitation or bankruptcy proceedings are considered initiated from the date the court issues a ruling on the acceptance of an application for the application of a rehabilitation procedure or on declaring the debtor bankrupt.
The preparation of cases for trial in special proceedings is carried out in accordance with Articles 165, 303 of the CPC, within 10 working days from the date of acceptance of the application to the court. An extension of this period is not allowed.
At the same time, the Law does not provide for the preparation of cases on the application of debt restructuring procedures against the debtor.
Cases of special proceedings are considered by the courts according to the rules of claim proceedings with the specifics established by Chapters 31-49 of the CPC, with the participation of the applicant and interested persons.
Accordingly, the creditor or debtor applies to the court with a statement, not with a claim. The participants in the process are not referred to as the plaintiff and the defendant, but as the applicant, creditor, debtor, authorized body, administrator, or other interested parties (Article 43 of the CPC, Articles 66, 85 of the Law).
At the same time, there are cases where the court in the procedural documents indicates "claim, statement of claim" instead of "statement", "plaintiff" instead of "applicant", "third party" instead of "interested person".
By virtue of subparagraph 3) of Article 1 of the Law, an administrator means a temporary administrator, rehabilitation, temporary or bankrupt managers.
Subparagraph 20) of Article 1 of the Law defines the concept of an official, namely: "an official is a member of the board of directors of a joint–stock company, the head (deputy head) of a debtor legal entity, as well as another person who is a member of the collegial executive body of a legal entity with permanent or temporary powers to manage a legal entity, the chief accountant of a legal entity the debtor's person, as well as another person temporarily performing his duties."
In accordance with article 52 of the Law, when preparing a rehabilitation or bankruptcy case for trial, in addition to the actions provided for by the legislation on civil proceedings of the Republic of Kazakhstan, the court notifies the authorized body, the debtor, creditors, the prosecutor and other persons involved in the case about the time and place of consideration of the case at the court session and sends them copies rulings on the preparation for the trial of a rehabilitation or bankruptcy case.
In practice, the courts do not always comply with these requirements. In some cases, there is no information about sending a notice to all creditors (with a large number of them), only those creditors to whom there is the most significant debt are called to court.
According to article 54 of the Law, upon completion of preliminary preparation, a rehabilitation or bankruptcy case must be scheduled for trial, which the court issues a ruling on. At the same time, the current CPC does not provide for the issuance of a ruling on the appointment of a court session. That is, paragraph 1 of Article 54 of the Law contradicts the requirements of Article 173 of the CPC.
Summary of judicial practice in the application of legislation on rehabilitation and bankruptcy in cases considered by the courts for the period 2020-2021 and the 1st half of 2022.
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