On challenging the actions of receiving, registering and resolving the substance of the notification and minutes of the constituent assembly with the obligation to restore information about the legal entity to its original position
No. 6001-23-00-6ap/1375 dated 11/9/2023
Plaintiff: PC "SEC" (hereinafter – SEC)
Defendant: NAO "Government for Citizens State Corporation" (hereinafter – NAO State Corporation)
Interested person: Sh.T.
The subject of the dispute: on challenging the actions of receiving, registering and resolving the substance of the notification and minutes of the constituent assembly with the obligation to restore information about the legal entity to its original position
Review of the cassation appeal of the person concerned PLOT:
On March 3, 2017, SEC was registered as a legal entity, a small business entity. At the time of state registration, the head was Sh.T, and the founders are Sh.T., V.S. and LLP
"D."
On August 1, 2019, to the Department of Registration and Land Administration of the district
The cadastre of the NAO branch in East Kazakhstan region purposely received a notification signed by the head of SEC Sh.T. and the minutes of the constituent assembly dated July 23, 2019 on the withdrawal of SEC LLP "D" and acceptance as founder of M.O.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision was overturned, and a new decision was made to satisfy the claim.
Resolved: to declare illegal and cancel the actions of the NAO
"Government for Citizens State Corporation for the Reception, Registration and substantive resolution of Notification No. 1 dated August 1, 2019 and Protocol No. 3 of the Constituent Assembly dated July 23, 2019.
To assign to the NAO the obligation to bring information about the legal entity, the SPK B-Sh production cooperative, to its original position, corresponding to July 31, 2019.
Cassation: the decision of the judicial board is upheld.
Conclusions: by resolving the dispute and rejecting the claim, the court of first instance concluded that the actions of the registering authority were lawful.
The Court of Appeal did not agree with the above conclusions of the court of first instance and, making a new decision on the satisfaction of the claim in the case, indicated that due to improper performance by an employee of the State Corporation of the obligation to identify the recipient of the NAO State Corporation, SEC documents were accepted from another person, whereas in fact SEC did not apply for this service.
The NAO State Corporation, having accepted documents not from the head of SEC S.T., not authorized by him, having entered information about the composition of the founders of SEC without his knowledge, violated the legal capacity of the legal entity.
The judicial Board agrees with the conclusions of the court of appeal, and finds the arguments of the complaint untenable due to the following.
According to paragraph 3 of Article 6 of the Law "On Identity Documents", civil law transactions are carried out using identity documents.
When providing public services through a State Corporation, the identity of the service recipient is identified in accordance with paragraph 3 of Article 20 of the Law "On Public Services" by employees of the State Corporation.
According to paragraph 2 of article 20 of the Law on Public Services, an employee of a State Corporation is obliged to accept a service recipient's application if he has a complete set of documents according to the list provided for by the standard of public services, whereas there was no such standard of public services.
Thus, the above-mentioned law does not provide for the service of making changes to the registration data of a commercial legal entity when the membership of a cooperative changes, as of August 1, 2019, and currently, therefore, the NAO State Corporation was not entitled to make changes to the membership of the SEC.
It is rightfully noted that the conclusions of the handwriting examinations No. 2128 dated November 9, 2021, No. 1514 dated September 1, 2020 established that the signatures on behalf of Sh.T. in the notification dated August 1, 2019, in the minutes of the general meeting dated July 23, 2019, were not executed by Sh.T., but by another person imitating his authentic signatures.
Consequently, the conclusion of the court of appeal on the satisfaction of the claim is legitimate and justified.
The arguments given in the cassation appeal of the representative of the person concerned are untenable, since the court of appeal has given a proper legal assessment of the circumstances of the dispute, and the disagreement of the party with the conclusions of the court, consistent with the law and the objective circumstances of the case, is not a reason for the cancellation of the contested judicial act.
The court of appeal established the circumstances of the case correctly, the norms of substantive and procedural law were applied correctly, and the collegium does not see any legal grounds for restoring the decision of the court of first instance.
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