On determining the share of a minor heir
On August 9, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: the presiding chairman of the Board N.K., judges Z., B., with the participation of the plaintiff A.A., her representative – lawyer G.E., the representative of the defendant G.J. – lawyer A.D., having considered in open court via videoconference, the civil the case on the claim of A.A. to G.Zh., B.E., notary A.A. on determining the share of the minor heir, received at the request of G.Zh. for a review of the decision of the judicial board for civil cases dated April 5, 2022,
A.A. filed a lawsuit against G.J., B.E., notary A.A. to determine the share of the minor heir.
By the decision of the district court of December 13, 2021, the claim was dismissed.
By the decision of the judicial board for civil cases dated April 5, 2022, the decision of the court of first instance was changed, canceled in terms of the refusal to satisfy the claim for determining the share of E.B. and A.E., and in this part a new decision was made to satisfy the claim.
It was decided: to determine the share of E.B. in the amount of 1/2 part in the authorized capital of the limited liability partnership "Kindergarten Kindergarten "B" (hereinafter referred to as "Kindergarten Kindergarten "B" LLP).
Determine the share of A.E. in the amount of 1/12 of the share in the authorized capital of "Kindergarten-kindergarten "B" LLP.
To collect from G.Zh. and B.E. in favor of A.A. the costs of paying the state fee in the amount of 3,063 tenge, to pay for the assistance of a representative in the amount of 400,000 tenge in a shared manner.
The rest of the court's decision remains unchanged.
In the petition, the representative of G.Zh. – A.D., referring to the violation by the court of the norms of substantive and procedural law, asks to cancel the decision of the appellate instance and make a new decision to dismiss the claim.
The defendants B.E. and notary A.A. were duly notified of the time and place of the case, but they did not connect to the videoconference to participate in the cassation hearing.
According to the third part of Article 445 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC) the failure of the persons participating in the case, duly notified of the time and place of consideration of the case by the court of cassation instance, is not an obstacle to the consideration of the case.
Having heard the representative of the defendant G.Zh., lawyer A.D., who supported the arguments of the petition, the objections of the plaintiff A.A. and her representative, lawyer G.E., having studied the case materials, the judicial board considers the petition to be satisfied on the following grounds.
In accordance with Part 5 of Article 438 of the CPC, the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an unlawful judicial act.
Such violations were committed by the court of appeal.
It follows from the case file that on February 12, 2017, E.B. died.
On September 4, 2017, October 30, 2017, and November 8, 2017, notary A.A. issued a certificate of inheritance.
G.Zh. is the founder of "Kindergarten-kindergarten "B" LLP.
A.A. suing the court to determine the shares of the testator E.B. and the minor heir A.E. in the authorized capital of "Kindergarten-kindergarten "B" LLP and the income from the partnership's work, indicated that her daughter A.E. is the heir of E.B. The defendant G.J. and the testator E.B. were in a registered marriage, therefore, the authorized capital and income from the work of "Kindergarten-kindergarten "B" LLP are the common property of the spouses. Due to the defendant's failure to provide the constituent documents to the notary, the certificate of inheritance right was not issued by law.
The court of first instance, rejecting the claim, motivated by the fact that G.Zh. is the sole founder of the LLP "Kindergarten kindergarten "B" since August 17, 2015, that is, from the moment of its formation, therefore, the share in the authorized capital cannot be a hereditary mass. E.B. during his lifetime did not declare claims in respect of shares in the authorized capital of the LLP, the plaintiff has not filed a claim to recognize the authorized capital of the LLP "Kindergarten Kindergarten "B" as the common property of the spouses.
The Court of Appeal, guided by Article 209 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), Article 33 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" partially satisfied the claim, arguing that the authorized capital of Kindergarten B LLP is the joint property of the spouses, and the share of the deceased spouse is E.B. In this case, the LLP is a hereditary mass, which is provided for by the provisions of Article 80 of the Civil Code.
It is impossible to agree with such conclusions of the court of appeal.
According to the charter of Kindergarten B LLP, the only participant is G.Zh., which was not taken into account by the court of appeal.
The conclusions of the court of appeal on the transfer of a share in the LLP to the heirs, with reference to the provisions of Article 80 of the Civil Code, are erroneous, since paragraph 6 of Article 80 of the Civil Code provides that shares in the authorized capital of a limited liability partnership of citizens who were participants in the partnership are transferred to the heirs.
By virtue of article 35 of the Law of the Republic of Kazakhstan "On Limited and Additional Liability Partnerships" (hereinafter referred to as the Law), the share of a participant in a limited liability partnership passes to the heir, unless otherwise provided by the constituent documents of the partnership.
In this case, the deceased E.B. was not a member of the partnership.
The conclusions of the court of appeal on determining the heir's share in the authorized capital of the LLP are also erroneous, since this actually means his inclusion in the LLP, which entails a change in the composition of the LLP and contradicts the Law.
The courts have established and are not disputed by the parties that E.B. did not make any demands during his lifetime regarding the division of a share in the authorized capital of Kindergarten B LLP.
It should be noted that if a dispute arose about the division of jointly acquired property during the lifetime of E.B., the common property, by virtue of the requirements of paragraph 16 of the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008 No. 2 "On certain issues of the application of legislation on limited and additional liability partnerships", would include only the value of the share in the authorized capital. the capital of the partnership, proportional to the value of its property (assets), taking into account the size of its liabilities (debts).
In such circumstances, the judicial board, considering that the court of appeal made an error in the application and interpretation of substantive law, considers it necessary to cancel the decision of the court of appeal and leave the decision of the court of first instance in force.
On the basis of part 1 of Article 109 of the CPC, A.A. is subject to recovery in favor of G.Zh. the court costs of paying the state fee when filing a petition for review of the judicial act in cassation in the amount of 1,532 tenge.
Guided by subparagraph 2) in part 2 of Article 451 of THE CPC, the judicial board DECIDED:
The decision of the judicial board for civil cases of April 5, 2022 in this case should be annulled, while the decision of the district court of December 13, 2021 remained in force.
To satisfy G.J.'s petition.
To collect from A.A. in favor of G.Zh. the costs of paying the state fee in the amount of 1,532 (one thousand five hundred and thirty-two) tenge.
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