On judicial practice of liquidation of absent legal entities and an absent debtor, as well as legal entities carrying out their activities in gross violation of the law
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 5.
The footnote. The title is in the wording of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
For the purposes of uniform interpretation and application in judicial practice of legislation on the liquidation of legal entities carrying out their activities in gross violation of the law (hereinafter referred to as absent legal entities and absent debtors), the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
To draw the attention of the courts to the fact that the liquidation of a legal entity by a court decision is carried out on the grounds provided for in paragraph 2 of Article 49 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) and other legislative acts.
The specifics of the termination of the activities of private business entities are provided for in Article 21 of the Civil Code, Articles 39, 53 of the Entrepreneurial Code of the Republic of Kazakhstan, chapters 7, 8 and 9 of the Law of the Republic of Kazakhstan dated March 7, 2014 No. 176-V "On Rehabilitation and Bankruptcy" (hereinafter - the Law).
The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 23 (for the procedure of entry into force, see paragraph 2); dated 12/30/2011 No. 5 (effective from the date of official publication); dated 11/29/2018 No. 18 (effective from the date of the first official publication).
For absent legal entities and absent debtors, the legislation provides for special grounds and a simplified liquidation procedure.
In accordance with subparagraph 15) of article 1 of the Law, an absent debtor is a debtor whose domicile or place of registration or the location of a permanent body, as well as participants and officials, without whom the debtor cannot carry out its activities, cannot be established within six months.
According to sub-paragraphs 3) and 4) of paragraph 2 of Article 49 of the Civil Code, a legal entity may be liquidated if it is absent at its location or at its actual address, if it does not have founders (participants) and officials, without whom the legal entity cannot function for one year if it carries out activities in gross violation. legislation, which is expressed in the systematic conduct of activities contrary to the statutory goals of a legal entity, carrying out activities without a proper license or activity, prohibited by legislative acts.
The liquidation of an absent legal entity and an absent debtor can only be carried out in court.
The procedure for liquidation of an absent legal entity and an absent debtor is determined depending on the presence or absence of its accounts payable (creditors).
The footnote. Paragraph 2 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 23 (for the procedure of entry into force, see paragraph 2); dated 12/30/2011 No. 5 (effective from the date of official publication); dated 11/29/2018 No. 18 (effective from the date of the first official publication).
A gross violation of the law in carrying out the activities of legal entities should be considered an intentional or careless obvious and significant violation of the norms of national legislation, ratified international treaties regulating and (or) regulating the formation, reorganization, liquidation, as well as the activities of the relevant legal entity, committed by the founder or an individual (persons) performing the functions of managing this legal entity, if such a violation has caused or created a real possibility of negative factual or legal consequences.
The signs of an absent legal entity listed separately in subparagraph 3) of paragraph 2 of Article 49 of the Civil Code, as well as the absence of creditors from a legal entity, are not independent grounds for liquidation of a legal entity.
May not be liquidated in accordance with subparagraph 3) paragraph 2 of Article 49 of the Civil Code of the Russian Federation, a legal entity that is absent at its location or at its actual address, as well as in the absence of its founders (participants) and officials, if this legal entity has temporarily suspended its activities, but submits appropriate tax reports in a timely manner.
A legal entity that does not have officials may not be liquidated in accordance with the specified procedure, but there are founders (participants) who are responsible for organizing the activities of the legal entity and have the right to appoint (elect) officials.
It is necessary to distinguish between the failure to submit tax reports by an absent legal entity and the violation of reporting deadlines by an existing legal entity. Legal entities, founders (participants), or officials who carry out their activities and are located at the place of registration (i.e., are not absent), but do not submit tax reports on time, are responsible for such violations in accordance with the procedure established by law.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 11/29/2018 No. 18 (effective from the date of the first official publication).
Claims for the liquidation of an absent legal entity, according to paragraph 3 of Article 49 of the Civil Code, may be brought to court by a state body to which the right to file a claim is granted by legislative acts, and in cases of bankruptcy - also by the creditor. According to Article 19 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (the Tax Code), such a right is granted, in particular, to tax authorities.
The tax authorities have the right to file lawsuits with the courts for the liquidation of a legal entity on the grounds provided for in the sub-paragraphs 1), 2), 3), 4) paragraph 2 of Article 49 of the Civil Code.
The licensor has the right to file a claim for the liquidation of a legal entity in connection with the conduct of activities without a proper license.
In accordance with paragraph 1 of Article 133 of the Law of the Republic of Kazakhstan dated March 1, 2011 No. 413-IV "On State Property", a republican state enterprise is established by the Government of the Republic of Kazakhstan, and a municipal state enterprise is established by local executive bodies.
The liquidation of a republican legal entity is carried out by the authorized body of the relevant industry in coordination with the authorized body for state property, unless otherwise established by laws. The liquidation of a communal legal entity is carried out by a local executive body or, in coordination with the akim of a district (city of regional significance) and a meeting of the local community, the office of the akim of a city of regional significance, village, settlement, rural district.
The claim of a state institution that is the founder of another inactive state institution for liquidation is not subject to satisfaction, since the liquidation procedure for such a legal entity is carried out in accordance with Article 50 of the Civil Code by the body that made the decision on liquidation, and not by the court.
An absent legal entity with accounts payable (an absent debtor) is subject to judicial liquidation in accordance with subparagraph 1) of paragraph 2 of Article 49 of the Civil Code due to bankruptcy (insolvency) under simplified procedures established by Articles 57, 118 of the Law.
Articles 44 and 47 of the Law grant creditors, a tax or other authorized state body for taxes and other payments to the budget, as well as a prosecutor the right to file claims for liquidation on the grounds of bankruptcy of an absent debtor.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
When applying to the court with claims for the liquidation of an absent legal entity with no creditors, or for the initiation of bankruptcy proceedings against an absent debtor with accounts payable, applicants are required to provide evidence of the absence of legal entities at the location indicated in the constituent documents or at the actual address, as well as evidence of the absence of founders, participants and officials. persons without whom this legal entity cannot carry out its activities, at the same time, it is necessary to confirm the expiration of the absence period established by law for absent debtors - within six months, for absent legal entities - within one year until the moment of the applicant's appeal to the court.
Such evidence may be acts, certificates or other documents of local government bodies, territorial bodies exercising control over business activities, as well as organizations providing housing and communal services. Proof of the absence of a legal entity is also the return by the communications authorities of copies of applications for the liquidation of the missing legal entity and court rulings on the initiation of proceedings sent to the legal entity, with a note on the absence of the addressee or on his departure, as well as the failure to submit a corporate income tax declaration (on total annual income and deductions made) or a simplified The declaration is issued after one year, after the deadline set by law for submission.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
The circle of persons without whom a legal entity cannot carry out its activities (cannot function) is determined by the court in each specific case on the basis of the constituent documents. When applying to the court for the liquidation of an absent legal entity (debtor), applicants are required to submit the constituent documents or notarized copies of the constituent documents, as well as documents attesting to the state registration (re-registration) of the legal entity of this legal entity.
The absence of the officials indicated in the constituent documents, without whom the activity of a legal entity is impossible (cannot function), as well as the founders and participants - individuals, can be confirmed by documents on departure, non-residence, witness statements, and other evidence.
Persons dismissed by a legal entity in accordance with the established procedure are not recognized as proper representatives of the absent legal entity (the absent debtor), even if their location is known or they appear at a court hearing.
If the only founders (participants) of the missing legal entity, including the debtor, were other legal entities, and they were liquidated in accordance with the procedure established by law, this circumstance is also proof of the absence of the founder (participant) of the legal entity.
The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
As evidence, the court may accept documents on death, recognition as incompetent, conviction to imprisonment or deprivation of the right to engage in certain types of activities, recognition of officials as missing, or death of the sole founders (participants) - individuals (in the absence of legal succession), without which the activity of a legal entity is impossible.
In this case, a claim for the liquidation of a legal entity may be filed before the expiration of six months (one year) from the date of the occurrence of these events.
The presence of accounts payable from absent debtors, or the absence of creditors from an absent legal entity, can be confirmed by transcripts to the latest tax statements submitted by them, balance sheets, tax authorities' certificates, and other documents.
Depending on the evidence provided about the presence or absence of creditors or accounts payable of the missing legal entity (the missing debtor), the applicant is obliged to indicate the grounds provided by law for requesting the liquidation of the missing legal entity, the missing debtor with references to the relevant articles of the Civil Code, the Law.
The requirements provided for in Chapter 31 of the CPC, articles 44, 45, 46, and 47 of the Law for filing applications to the court for the liquidation of absent debtors, and for filing applications for their bankruptcy, courts should apply taking into account the specifics of this category of cases.
The restrictions established by subitems 1), 2), 3) of paragraph 1 of Article 5 of the Law on the amount of creditors' claims against the debtor in respect of the absent debtor are not applied, and bankruptcy applications of the absent debtor are accepted by the courts for consideration regardless of the amount of debt he has.
Applications from tax authorities and the prosecutor for the liquidation of both absent legal entities and absent debtors are not subject to state duty. In the case of bankruptcy applications from the debtor of other creditors, the state fee is paid in accordance with the general procedure.
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 23 (for the procedure of entry into force, see paragraph 2); dated 29.11.2018 No. 18 (effective from the date of the first official publication).
The inconsistency of the organizational and legal form of the absent legal entity (the absent debtor) with the requirements of Article 34 of the Civil Code, and the failure of the applicant to provide information about the property of the absent legal entity (the absent debtor) when applying to the court is not grounds for refusing to accept for consideration an application for liquidation of the legal entity.
The absence of registration of a legal entity in the unified state register of legal entities is also not a reason for refusing to accept an application for consideration if this legal entity was established before the adoption of the Civil Code and registered in accordance with the established procedure.
The footnote. Paragraph 10 has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
Applications for the liquidation of an absent legal entity are considered in the order of claim proceedings, and for the bankruptcy of an absent debtor - in the order of special proceedings.
The failure of persons authorized by the constituent documents to represent the interests of a legal entity (founders, participants and officials) to attend a court hearing does not entail consideration of the application in absentia.
If, during the consideration of the case on the liquidation of an absent legal entity, its authorized officials or founders (participants), indicated by the applicant as absent, appear at the court session or declare in writing that the legal entity continues to operate or agrees to the liquidation, the court denies the claim for the liquidation of this legal entity as absent.
If creditors (accounts payable) are identified directly at the court session, the court decides to reject the claim for liquidation of the legal entity, if it was filed only on the grounds of the absence of creditors.
Refusal to liquidate a legal entity on the grounds provided for in subparagraph 3) Paragraph 2 of Article 49 of the Civil Code for an absent legal entity without creditors does not prevent creditors, the authorized body or the prosecutor from re-applying for liquidation of the same legal entity on other grounds provided for by civil legislation.
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
Upon a written application from a creditor, prosecutor or authorized body who has applied to the court, the court has the right to consider changing the grounds for the stated claim to liquidate an absent legal entity.
The consent of authorized officials who appeared in court, as well as the founders (participants) of a legal entity, whose absence was indicated by the plaintiff when applying to the court, with the requirements for liquidation, including through simplified procedures, is not an unconditional basis for satisfying the application. By rejecting a claim, the court is obliged to explain to the persons authorized by the constituent documents that they have the right to resolve the issue of voluntary liquidation of a legal entity, or to apply to the court for compulsory liquidation on other grounds established by law.
Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
When considering a claim for liquidation of an absent legal entity and an absent debtor, the court must, on the basis of the constituent documents, establish the circle of persons without whom the activity of the legal entity is impossible, the composition of its founders (participants) and assess the sufficiency of the evidence provided confirming the absence of the legal entity and the time of absence.
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
The liquidation of the absent debtor without initiating bankruptcy proceedings is carried out by the authorized body in accordance with the procedure established by Article 118 of the Law.
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
In accordance with paragraph 3 of Article 49 of the Civil Code, the obligation to liquidate an absent legal entity may be imposed by the court on the owner of its property, the body authorized by the owner, the body authorized to liquidate the legal entity by its constituent documents, or another body.
Due to the fact that the liquidation and bankruptcy procedures of absent legal entities are financed from the republican budget, the responsibility for organizing and ensuring the liquidation of an absent legal entity, as well as an absent debtor, is assigned by the court to the authorized body.
The liquidation of an absent legal entity is carried out in accordance with the procedure established by Article 50 of the Civil Code.
A court decision on the compulsory liquidation of an absent legal entity or on the insolvency (bankruptcy) of an absent debtor is not a reason for excluding a legal entity from the state register of legal entities until the completion of liquidation procedures.
A copy of the effective court decision on the compulsory liquidation of an absent legal entity or on declaring an absent debtor bankrupt is sent for information to the relevant judicial authority and the territorial subdivision of the authorized state body for statistics.
The property discovered during the liquidation of an absent legal entity is used to reimburse liquidation costs, and the remaining property, in accordance with paragraph 8 of Article 50 of the Civil Code, is used for the purposes specified in the constituent documents.
The person charged by the court with carrying out liquidation procedures submits to the court a final report on his activities and the liquidation balance sheet.
The person charged by the court with carrying out liquidation procedures submits to the court a final report on his activities and the liquidation balance sheet.
The court, within 15 days at the latest, reviews the submitted documents and issues a ruling on the approval of the report and on the completion of bankruptcy proceedings (liquidation), or on the refusal to approve the report.
The court may refuse to approve the report if the report does not contain sufficient information and evidence on carrying out the necessary procedures for the liquidation of an absent legal entity or an absent debtor.
If the creditors of the absent debtor have appealed against the actions or decisions of the person charged with liquidation, the report is considered by the court only after the judicial act adopted on the complaint has entered into force.
The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
When the duties of conducting the liquidation procedure are assigned to the authorized body, the rights and duties of the administrator provided for by Law are transferred to it. In the event of the absence of assets from the bankrupt, as well as transactions subject to invalidation, on the grounds provided for in Article 7 of the Law, the authorized body is obliged to submit a final report and a liquidation balance sheet to the creditors' meeting within one month for approval. The authorized body is obliged to submit the final report and the liquidation balance sheet to the court for approval within two working days from the moment of approval with the creditors' meeting, after the court approves the final report, close the bankrupt's bank accounts within three working days and submit the taxpayer's certificate and the certificate of registration for value added tax to the state revenue authority (if their availability).
The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 29.11.2018 No. 18 (effective from the date of the first official publication).
The operative part of the court ruling should instruct the authorized body to send to the registering body a copy of the decision on the liquidation of the legal entity and the ruling on the completion of liquidation procedures for registration of the liquidation of the legal entity.
The original constituent documents of the missing legal entity and the missing debtor, submitted by the applicant when applying to the court, are transferred to the registering authority simultaneously with copies of judicial acts if the legal entity has not passed state registration.
A copy of the order on registration of the liquidation of a legal entity is sent by the registering authority to the court within ten days for attachment to the case file.
The liquidation of a legal entity is considered completed, and the legal entity has ceased to exist, only after the registration authority issues an order on the liquidation of the legal entity and makes an appropriate entry in the state register of legal entities.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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