On some issues of the application by courts of legislation on the rehabilitation and bankruptcy of legal entities and individual entrepreneurs, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 2, 2023 No. 2

Having studied the practice of courts applying legislation on rehabilitation and bankruptcy and for the purposes of its uniform application, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

The legislation of the Republic of Kazakhstan in carrying out rehabilitation and bankruptcy procedures is based on the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) and consists of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the Entrepreneurial Code), the Law of the Republic of Kazakhstan dated March 7 2014 No. 176-V "On Rehabilitation and Bankruptcy" (hereinafter - Law), other laws and regulatory legal acts establishing the specifics of debt restructuring, rehabilitation procedures and recognition of legal entities and individual entrepreneurs (hereinafter referred to as the debtor) as bankrupt, liquidation of the debtor without initiating bankruptcy proceedings, except for state-owned enterprises and institutions, accumulative pension funds, banks, insurance (reinsurance) organizations.

In accordance with paragraph 2 of Article 2 of the Law, if an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.

Cases on the application of debt restructuring procedures, rehabilitation and bankruptcy of legal entities and individual entrepreneurs, as well as their liquidation without initiation of bankruptcy proceedings, cases on disputes arising within the framework of the above procedures, are considered by the courts according to the rules of civil procedure with the specifics established by Law.

Cases of debt restructuring, rehabilitation and bankruptcy of individual entrepreneurs and legal entities, as well as their liquidation without initiation of bankruptcy proceedings are considered in a special procedure. Applications are submitted to the court at the location of the debtor.

Disputes on claims filed by bankrupt or rehabilitation managers of the debtor or brought under these procedures are considered according to the rules of claim proceedings.

In accordance with the powers in the rehabilitation procedure and bankruptcy procedure defined by Law, the court that issued the decision on the application of the rehabilitation procedure or on declaring the debtor bankrupt resolves property disputes in which the debtor (bankrupt) acts as a defendant, as well as disputes between participants in these procedures.

The cases of this category are under the jurisdiction of the specialized inter-district economic courts of the regions, the cities of Almaty, Astana and Shymkent.

Jurisdiction over all other disputes is determined by the CPC.

The courts should take into account that only the debtor has the right to apply for debt restructuring. An application submitted by another person is not subject to satisfaction.

The debt restructuring procedure does not apply to the debtor for the claims of citizens to whom he is responsible for causing harm to life or health, for remuneration and compensation to persons who worked under an employment contract, has arrears of social contributions to the State Social Insurance Fund, for mandatory pension contributions and mandatory professional pension contributions, for deductions and (or contributions) for compulsory social health insurance, for remuneration under copyright agreements.

The debt restructuring procedure is applied under the following conditions: no rehabilitation or bankruptcy proceedings have been initiated against the debtor; the debtor is temporarily insolvent.

The concept of temporary insolvency is defined by paragraph 1 of Article 5-1 of the Law.

The court needs to establish the debtor's temporary insolvency, not his insolvency.

Based on the results of consideration of the application for debt restructuring, the court issues a judicial act in the form of a decision, which is subject to immediate execution.

When satisfying the debtor's application, the operative part of the decision must specify the consequences of applying the restructuring procedure provided for in article 28-2 of the Law.

Within two months from the date of entry into force of the court decision, the debtor is obliged to conclude with all creditors an agreement on debt restructuring, which is signed by all creditors and must contain provisions on the terms of the agreement, the procedure, methods and deadlines for fulfilling obligations.

The agreement is subject to court approval in accordance with the provisions of article 28-4 of the Law.

The debtor shall attach a list of all creditors to the application to the court for approval of the debt restructuring agreement.

If the agreement is not concluded or the agreement is not submitted to the court, within two months from the date of entry into force of the court's decision on the application of the debt restructuring procedure, the restructuring procedure is considered completed.

According to article 63 of the Law, a rehabilitation procedure may be applied to debtors in court.

The basis for the debtor or creditor's application to the court for the application of a rehabilitation procedure is such temporary insolvency of the debtor when, as of the date of filing the application, there are one or more circumstances provided for in subparagraphs 1) and 2) of paragraph 1 of Article 5-1 of the Law.

By virtue of the provisions of Article 21-1 of the Civil Code, any measures aimed at restoring his solvency, which are not contrary to the legislation of the Republic of Kazakhstan, may be applied to a debtor registered as an individual entrepreneur in order to prevent the termination of his entrepreneurial activity, which are implemented as part of a rehabilitation procedure.

A rehabilitation procedure may be applied in a case of declaring a debtor bankrupt, in which a court decision on declaring bankruptcy has not been taken. In this case, the rehabilitation plan must be developed by the debtor together with creditors and approved by the court within three months from the date of entry into force of the decision on the application of the rehabilitation procedure.

Subparagraph 3) of Article 1 of the Law defines the concept of "administrator" - temporary administrator, rehabilitation, temporary and bankruptcy administrators who exercise their powers in accordance with the Law during the consideration of the case in court, as well as the conduct of rehabilitation and bankruptcy proceedings.

The administrator is appointed by a person registered with the authorized body. The administrator's authority is confirmed by an order of the authorized body. The administrator is obliged to exercise his powers at the location of the debtor.

The debtor's management body is:

the rehabilitation manager (in case of his appointment in the rehabilitation procedure) or the participant in the rehabilitation - from the date of entry into force of the court ruling on the approval of the rehabilitation plan;

interim manager - from the date of entry into force of the court's decision declaring the debtor bankrupt until the appointment of the bankruptcy manager;

bankrupt manager - from the date of his appointment.

The administrator may be removed from managing the debtor's affairs and property in accordance with the procedure established by law.

Based on the decision of the creditors' meeting, the debtor may be managed in the rehabilitation procedure.: 1) the individual entrepreneur - debtor or the body (person) authorized by the owner of the property, the founder (participant) of the legal entity - debtor; 2) the rehabilitation manager.

The management of a debtor in the rehabilitation procedure of an individual entrepreneur is understood as the management of his affairs and property, taking into account the specifics provided for by law.

If at the first creditors' meeting it is decided to assign the powers of managing the debtor to the rehabilitation manager, then his candidacy is selected by the creditors' meeting from among the persons whose notifications are included in the register of notifications of persons authorized to carry out the activities of the administrator.

The authorized body is obliged to appoint the candidate chosen by the creditors' meeting as the rehabilitation manager within two working days from the date of receipt of the minutes of the creditors' meeting. If the authorized body refuses to appoint the submitted candidate, the creditors' meeting is obliged to submit another candidate for appointment as a rehabilitation manager.

During the rehabilitation procedure, the creditors' meeting has the right to change the decision on the assignment of powers to manage the debtor once by removing the appointed persons in accordance with subitems 1) and 2) of paragraph 3 of Article 69 of the Law.

The courts should keep in mind that the provisions of the Law provide grounds for applying to the court of the creditor and debtor with a declaration of bankruptcy. The grounds vary depending on the subject of the appeal: the creditor and the debtor.

According to paragraph 1 of Article 5 of the Law, the debtor's stable insolvency is the basis for applying to the court for declaring him bankrupt and liquidation with the initiation of bankruptcy proceedings.

Insolvency is sustainable if the debtor's obligations exceed the value of his property on the date of filing the application to the court and at the beginning of the year in which the application was filed, as well as at the beginning of the year preceding the year of filing the application, if the application was filed by the debtor in the first quarter of the calendar year.

The basis for the creditor's application to the court for declaring the debtor bankrupt and its liquidation with the initiation of bankruptcy proceedings is an unfulfilled monetary obligation of the debtor to the creditor on the basis of a judicial act or executive document on the recovery of money from the debtor, or recognition of the debt by the debtor, unless otherwise provided by paragraph 2 of Article 5 of the Law.

The debtor's recognition of the debt may be expressed in writing in a response to a claim; a bilateral reconciliation act signed by authorized representatives of the debtor and the creditor and stamped by the parties; a letter of guarantee from the debtor for the payment of the debt, etc.

The basis for the creditor's application for taxes and customs payments to the court for declaring the debtor bankrupt and its liquidation with the initiation of bankruptcy proceedings is the debtor's failure to repay the amount of tax arrears, as well as arrears on customs payments, special, anti-dumping, countervailing duties, and interest after taking all enforcement measures in accordance with the procedure established by tax and customs legislation Of the Republic of Kazakhstan.

According to article 3 of the Law, the specifics of applying bankruptcy procedures to individual entities, depending on their legal status and activities, may be established by the legislation of the Republic of Kazakhstan.

The specifics of the liquidation of a bank, an insurance (reinsurance) organization, or an accumulative pension fund, in the event that a court decides to declare bankruptcy, are established by banking legislation, legislation on insurance and insurance activities, and social protection in the field of pension provision.

The procedure for rehabilitation and bankruptcy of individual entrepreneurs as subjects of entrepreneurial activity is carried out in accordance with the procedure established by the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy, taking into account the provisions of Articles 21 and 21-1 of the Civil Code.

When accepting applications from a debtor or creditor for declaring the debtor bankrupt or for applying a rehabilitation procedure, the court, based on the applicant's constituent documents, should check whether the application has been signed by the proper person (body).

The application is signed by the head of the legal entity (debtor or creditor), or by the person replacing him in accordance with the constituent documents, or by the debtor, an individual entrepreneur.

The application may be signed by the applicant's representative. In this case, according to the rules of Articles 60, 61 of the CPC, a power of attorney is attached to the application, providing for the representative's authority to sign the application and send it to the court.

If, upon acceptance of the application, the court finds that it was signed by a person without authority, or documents confirming the authority of this person, as well as documents provided for in articles 41, 42, 44, 45 of the Law, are not attached, then in accordance with paragraph 3 of Article 45-1 of the Law, the court returns the application of the debtor or creditor (creditors) without consideration.

According to paragraph 2 of article 45-1 of the Law, in cases where applying to the court for declaring bankruptcy is mandatory for the debtor in accordance with the Law, and the necessary documents are not attached to the application, the court is obliged to accept the application into its proceedings and claim the missing documents in order to prepare the case for trial.

Article 46 of the Law provides for the creditor's right to combine several claims against the debtor for various obligations in one statement. The claims of several creditors against one debtor may be combined in a single statement. Such a statement is signed by the creditors who have consolidated their claims.

If the creditor's application for declaring the debtor bankrupt has been submitted to the court after the initiation of proceedings against the debtor on the basis of an application from another creditor, but before making a decision on the case, the court issues a ruling on joining the application to the proceedings for simultaneous consideration.

In this case, the temporary administrator will be an administrator involved in a civil case in which the court issued a ruling on the initiation of bankruptcy proceedings earlier than other similar rulings.

Upon receipt of an application after the entry into force of a court decision declaring the debtor bankrupt and its liquidation with the initiation of bankruptcy proceedings, the court refuses to accept the application with reference to subparagraph 2) of the first part of Article 151 of the CPC.

Article 50 of the Law establishes a list of consequences for the debtor when a court initiates rehabilitation or bankruptcy proceedings, including a ban on the debtor, the owner of the property, the founder (participant), and all bodies of a legal entity from using and selling property outside the framework of ordinary commercial operations, and a ban on satisfying creditors' claims outside the rehabilitation procedures. and bankruptcy (except for persons directly specified in the law), suspension of the execution of previously adopted court decisions (except in cases specified in the Law).

Measures to secure creditors' claims provided for in article 51 of the Law may be taken by a court only on the basis of an application from creditors, the prosecutor or other persons involved in the case.

The court may not take all the security measures provided for in article 51 of the Law. The security measures taken must be reasonable, meet the goals of ensuring the interests of creditors, the safety of property and not interfere with the implementation of production activities, including the continuation of work in industries with a continuous or seasonal cycle related to the life and health of citizens, environmental protection, and national security.

The courts should take into account that on the basis of the debtor's application and a copy of the court's ruling on the approval of the rehabilitation plan, which has entered into force, all restrictions and encumbrances on the debtor's property (collection orders to the debtor's accounts, seizures of property, etc.) are lifted without making appropriate decisions of the authorities that imposed them.

The initiation of bankruptcy proceedings against the debtor (the application of rehabilitation procedures or debt restructuring) is not a reason for the termination of proceedings in property matters in which the debtor acts as a defendant. The issue of the enforcement of these decisions, which entered into force prior to the decision to declare the debtor bankrupt (the application of rehabilitation procedures or debt restructuring), is resolved taking into account the provisions of articles 28-2 and 50 of the Law.

The claims of creditors, whose monetary obligations arose both before and after the introduction of rehabilitation or debt restructuring procedures, are considered in accordance with the procedure established by legislative acts of the Republic of Kazakhstan.

The specifics of the debtor's execution of court decisions issued after the entry into force of judicial acts approving an agreement on debt restructuring, on the application of a rehabilitation procedure or on declaring the debtor bankrupt are established by the provisions of articles 28-5, 68, 87 of the Law.

The rules governing the consequences of applying a debt restructuring procedure, approving a debt restructuring agreement by a court, initiating rehabilitation or bankruptcy proceedings, applying a rehabilitation procedure, and initiating bankruptcy proceedings provided for in articles 28-2, 28-5, 50, 68, and 87 of the Law are binding.

From the date of the court's decision to declare the debtor bankrupt, all property cases involving the bankrupt considered in court are terminated if the decisions taken on them have not entered into legal force. Creditors' property claims may be filed against a bankrupt only as part of bankruptcy proceedings (with the exception of claims for the execution of guarantees and sureties of third parties, as well as foreclosure on the subject of collateral in cases where third parties act as the pledgor), and are considered by the court that has decided to declare the debtor bankrupt.

The temporary (bankrupt) manager is obliged to notify all the courts that handle cases on the consideration of property claims against the debtor of declaring him bankrupt and to send applications for termination of proceedings.

Courts should keep in mind that at any stage of the bankruptcy procedure, the debtor and creditors have the right to conclude an amicable agreement.

When approving the settlement agreement, the court issues a ruling approving the settlement agreement, which states that the bankruptcy procedure is terminated and the decision to declare the debtor bankrupt and initiate bankruptcy proceedings is not enforceable.

The application for termination of the settlement agreement is considered by the court that approved it.

According to paragraph 1 of Article 56 of the Law, the decision to declare the debtor bankrupt and liquidate it with the initiation of bankruptcy proceedings is taken by the court, taking into account the conclusion of the interim administrator on the financial stability of the debtor, which contains the conclusion that the debtor belongs to the III class of financial stability and there are grounds for declaring him bankrupt; or an act on the impossibility of drawing up an opinion on financial stability the debtor, if the debtor has not provided the temporary manager with access to the accounting documentation.

The decision on the application of the rehabilitation procedure is made in accordance with paragraph 1 of Article 59 of the Law, taking into account the conclusion of the interim administrator on the financial stability of the debtor, which concludes that the debtor belongs to the II class of financial stability and there are grounds for the application of the rehabilitation procedure.

The conclusion on the financial stability of the debtor is drawn up by the temporary manager and the temporary administrator based on the results of collecting information on the financial condition of the debtor, by calculating coefficients characterizing the effectiveness of its financial and economic activities, taking into account the provisions of articles 49 and 49-1 of the Law. The court has the right to require the submission of written explanations to the conclusion, which should explain the indicators for all coefficients based on information from the balance sheet.

The courts should take into account that the conclusion of the interim manager or temporary administrator is one of the evidence in the case and is subject to evaluation by the court according to the rules of Articles 64, 65 and 67 of the CPC, in conjunction with other evidence in the case, taking into account their relevance, admissibility and reliability. Such a conclusion has no advantage over other evidence for the court.

In accordance with paragraph 1 of Article 58 of the Law, the decision to refuse to declare the debtor bankrupt is made by the court, taking into account the conclusion of the interim administrator on the financial stability of the debtor, provided for in subparagraphs 1) and 2) of paragraph 1 of Article 49 of the Law, or the act on the inexpediency of drawing up an opinion if the debtor has no other creditors except the applicant.

The norm of subparagraph 1) of paragraph 2 of Article 49 of the Law on issuing an act on the inexpediency of drawing up an opinion on the financial stability of the debtor due to the absence of other creditors other than the applicant does not apply to cases where the applicant is a creditor for taxes and customs payments or a creditor to whom the enforcement document was returned on the basis of subparagraph 2) of paragraph 1 of Article 48 of the Law of the Republic of Tajikistan. Kazakhstan dated April 2, 2010 No. 261-IV "On enforcement proceedings and the status of bailiffs".

If the debtor has not provided access to accounting documents, the temporary manager in accordance with subparagraph 2) Paragraph 3 of Article 49 of the Law is an act on the impossibility of drawing up an opinion on the financial stability of the debtor.

The courts should take into account that, by virtue of subparagraph 1) of paragraph 1 of Article 88 of the Law, the temporary administrator has the right to request information about the debtor and his property from government agencies, individuals and legal entities.

In this case, the court must make a decision based on the evidence available in the case file provided by the applicant, the administrator, and other interested parties, including the content of the interim administrator's act itself, which must be given a proper legal assessment.

The court's decision to declare the debtor bankrupt, based on his recognition of his insolvency, must contain conclusions about insolvency based on an analysis of the administrator's opinion, as well as available data on the debtor's financial and economic activities.

Applications for bankruptcy of legal entities and individual entrepreneurs are considered in a special procedure, and therefore the presence or absence of grounds for declaring the debtor insolvent is established at the time of applying to the court.

The refusal of the court to declare the debtor bankrupt, to apply rehabilitation procedures, or to terminate bankruptcy proceedings, rehabilitation procedures on the grounds established by law (except for termination of proceedings in connection with the debtor's liquidation), is not a reason for refusing to accept subsequent applications for declaring the same debtor bankrupt or applying rehabilitation procedures, submitted due to changed circumstances.

By virtue of the provisions of paragraph 1-1 of Article 48 of the Law, any creditor and debtor, including those who have been denied the application of the rehabilitation procedure, has the right to reapply to the court for the application of the rehabilitation procedure after two years from the date of entry into force of the court decision on the refusal to apply the rehabilitation procedure or the court ruling on the termination of the rehabilitation procedure. An application submitted before the expiration of the specified period is subject to return by the court.

If the court of first instance decides to refuse to apply the rehabilitation procedure or to refuse to declare the debtor bankrupt, the courts of appeal and cassation instances, based on the powers provided for in subparagraph 3) of the first part of Article 424 and subparagraph 8) of the second part of Article 451 of the CPC, have the right to reverse the decision of the court of first instance and without transferring the case for a new review, to make a decision on the satisfaction of the application, assigning the powers of the court in the rehabilitation procedure and bankruptcy procedure defined in articles 67 and 86 of the Law., to a specialized interdistrict economic court of appropriate jurisdiction.

The legislation on rehabilitation and bankruptcy establishes the obligation of rehabilitation and bankruptcy administrators to maintain a register of creditors' claims.

Creditors' claims against the debtor must be filed no later than one month from the date of publication of the announcement on the procedure for filing claims by creditors.

Creditors' claims filed within one month must be reviewed by a temporary administrator or rehabilitation manager (in the rehabilitation procedure) or a temporary or bankrupt manager (in the bankruptcy procedure) within ten working days from the date of their application, and recognized claims are included in the register. A creditor's claim filed later than one month is included in the register of creditors' claims, but such creditor is deprived of the right to vote at the creditors' meeting until the creditors' claims filed within one month are fully satisfied.

The register may also include creditors' claims that they previously filed with the court in compliance with the requirements of parts two and three of paragraph 2 of Article 72, paragraph 3 of Article 90 of the Law.

The administrator (temporary administrator, rehabilitation, temporary and bankruptcy managers) is obliged to notify each creditor in writing on the day following the day of the decision on the results of consideration of creditors' claims (on recognition or non-recognition of the claim in full or in part, indicating the reasons for non-recognition).

The decision of the administrator may be appealed by the creditor within ten working days from the date of receipt of the notification of the results of the consideration of the claim to the court considering the rehabilitation or bankruptcy case.

The creditor, debtor, property owner and participant (founder) of a legal entity in bankruptcy proceedings have the right to appeal the amount and grounds of creditors' claims included in the published register within ten working days from the date of its publication.

The expiration of the deadline is the basis for returning the complaint. In accordance with the provisions of Article 126 of the CPC, the procedural term may be restored by the court.

The courts should take into account the provisions of paragraph 4 of Article 101 of the Law, according to which the claims of creditors of the first priority, filed after the expiration of the period provided for in paragraph one of paragraph 3 of Article 90 of the Law, but before the completion of settlements with all creditors, are included in the register of creditors' claims in the first priority and are subject to satisfaction at the expense of the estate.

The claims of creditors of the first stage, filed after the completion of settlements with all creditors, but before the approval of the liquidation balance sheet, are satisfied from the bankrupt's property remaining after the creditors' claims are satisfied.

The administrator does not have the right to form (maintain) a register of creditors' claims based on the decryption of accounts payable to the debtor's balance sheet, since this contradicts the Law and Article 8 of the Civil Code, which grant citizens and legal entities the right to dispose of their rights, including the right to protection, at their own discretion. Therefore, when forming (maintaining) the register of creditors' claims, the administrator must check the availability of documents confirming the basis and amount of the claim (creditors' statements, court decisions that have entered into force, contracts, recognition of debt by the debtor, and others).

First of all, claims for compensation for damage caused to life or health are satisfied; for the recovery of alimony; for remuneration and compensation to persons who worked under an employment contract, with the payment of arrears in social contributions to the State Social Insurance Fund, mandatory pension contributions, mandatory professional pension contributions; for deductions and (or) contributions to compulsory social health insurance; payment of remuneration to authors for official inventions, utility models, and industrial designs.

The repayment of the claims of the first stage is carried out in the order of priority set out in paragraph 2 of Article 100 of the Law.

If the property is insufficient to repay the claims, it is distributed in proportion to the amounts of the claims, in accordance with the order set out in the Law.

A pledge creditor is a creditor for obligations whose claims are secured by a pledge of the debtor's property.

Courts should take into account that the debtor's property may be pledged against the obligations of the debtor and/or third parties.

The claims of collateral creditors are subject to inclusion in the register of creditors' claims as part of the second stage if there is a pledge property in the estate, a duly executed and registered pledge obligation (if registration of the pledge of property is required), and only in the part secured by the pledge. The claims of collateral creditors include the amount of the principal debt, remuneration, penalties (fines) if these claims are secured by collateral and are subject to inclusion in the register of claims of creditors of the second stage.

The claims of a creditor who claims to include his claims in the second priority, as a collateral creditor, but has not submitted a pledge agreement executed in accordance with the requirements of the law or has not been registered (if registration of a pledge of property is required), are taken into account as part of the fourth priority.

The mortgaged creditor is obliged to express written consent to the acceptance of this property or its rejection within ten working days from the date of receipt of the bankruptcy trustee's proposal to accept the pledged property in kind.

The courts should take into account that the transfer of collateral to a secured creditor is carried out only after repayment of the claims of creditors of the first stage for payment of labor and administrative expenses related to the assessment and maintenance of collateral, provided that there is no other property of the debtor to repay these claims.

In case of refusal to accept the pledged property in kind, failure to respond to the proposal of the interim manager within the prescribed period, or failure to fully repay administrative expenses and creditors' claims for remuneration, the claims of the pledged creditor shall be satisfied in accordance with the procedure provided for in article 103 of the Law.

Paragraph 4 of Article 100 of the Law establishes that tax arrears, as well as arrears on customs payments, special, anti-dumping, countervailing duties, and interest, are repaid in the third place.

When verifying the correctness of the formation of the register of creditors' claims of the third stage, the courts must apply the norms of subparagraph 61) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan "On Taxes and other Mandatory Payments to the Budget (Tax Code)", according to which tax arrears include the amount of arrears, as well as unpaid amounts of penalties and fines.

Regarding the register of creditors' claims of the fourth stage, courts should pay attention to the procedure established by Law for separate accounting of the amount of the debtor's obligations to the creditor, penalties for non-fulfillment of obligations and losses, since claims for damages and penalties (fines, penalties) are subject to satisfaction as part of the fifth stage.

The estate ensures the satisfaction of creditors' claims, therefore, the actions of the bankrupt manager to form the estate are, according to the Law, under the control of the creditors' meeting.

A bankrupt manager does not have the right to independently, without a decision of the creditors' meeting, establish the procedure for evaluating and selling property.

The estate is formed by the bankrupt manager in accordance with the procedure provided for in article 96 of the Law.

The duties of a bankruptcy trustee include, inter alia, identifying transactions made by the debtor under the circumstances specified in article 7 of the Law and taking measures to return the debtor's property.

The bankrupt manager has the right to apply to the court with a claim for invalidation of the reorganization of the debtor legal entity, committed by joining, dividing or separating within three years prior to the initiation of bankruptcy proceedings (rehabilitation) and which led to the illegal withdrawal of assets.

The formation of the composition of the estate in the rehabilitation procedure is carried out in the same way as in the bankruptcy procedure.

According to paragraph 1 of Article 7 of the Law, transactions are considered invalid if they are made by the debtor or a person authorized by him within three years prior to the initiation of bankruptcy and (or) rehabilitation proceedings, unless otherwise provided by Law, if there are grounds provided for by the civil legislation of the Republic of Kazakhstan and the Law.

Paragraph 2 of Article 7 of the Law lists special grounds for the invalidity of transactions, except those provided for by the Civil Code.

The courts should take into account that in cases of bankruptcy and rehabilitation managers seeking to invalidate transactions, the grounds for such claims may include both the special grounds provided for in paragraph 2 of Article 7 of the Law and the general grounds provided for in Articles 158, 159, 160 of the Civil Code.

The three-year period established by paragraph 1 of Article 7 of the Law also applies to claims for invalidation of transactions submitted on the grounds provided for in Articles 158, 159, 160 of the Civil Code.

By virtue of paragraph 3 of Article 7 of the Law, when revealing transactions made under the circumstances specified in paragraphs 1 and 2 of Article 7 of the Law, the administrator is obliged (including at the request of the creditor who revealed the transaction) to apply to the court for invalidation of such transactions within ten working days from the date of detection.

The ten-day time limit for filing a claim with the court is not suppressive and its expiration does not entail a denial of the claim, nor does it deprive the administrator of the right to apply to the court for protection of violated or disputed legal rights in the interests of creditors within the three-year limitation period.

In accordance with paragraph 3 of Article 44 of the Civil Code, the founder (participant) and (or) an official found guilty of intentional bankruptcy in cases of administrative offenses or criminal proceedings, if the legal entity has insufficient funds as a result of the bankruptcy procedure, bear subsidiary liability to creditors.

According to paragraph 1 of Article 6 of the Law, the founder (participant) and (or) an official found guilty of intentional bankruptcy in the course of proceedings on an administrative offense or criminal proceedings are vicariously liable to creditors with their property in the amount determined in accordance with paragraph 3 of Article 96 of the Law.

If two or more persons are found guilty of intentional bankruptcy in the course of proceedings on an administrative offense or criminal proceedings, such persons are jointly and severally liable.

At the same time, by virtue of paragraph 2 of Article 6 of the Law, the bankrupt manager, within ten working days from the date of entry into force of the judicial act on bringing the founder (participant) and (or) an official to criminal or administrative responsibility, is obliged to file a lawsuit against such a person for bringing him to subsidiary responsibility and recovery of amounts in the amount determined in accordance with paragraph 3 of Article 96 of the Law.

At the same time, the administrator must act in the interests of all creditors. The presentation of claims by individual creditors in their own interests is not allowed. The creditor has the right to file a claim with the court after the bankruptcy procedure is completed.

Explain to the courts that if the debtor's sole creditor is the state revenue authority, then the state revenue authority also has the right to recover damages caused by the culpable actions of the founder (participant) and (or) official, whose claims remained unsatisfied due to a lack of bankrupt property as a result of the bankruptcy procedure.

The ten-day period provided for in paragraph 2 of Article 6 of the Law for applying to the court with a claim for subsidiary liability of the founder (participant) and (or) official of the debtor is not suppressive and its expiration does not entail a denial of the claim, and also does not deprive the administrator of the right to apply to the court with a claim for subsidiary liability. and the recovery of the amounts of creditors' claims.

To draw the attention of the courts to the fact that the claims of the administrator (and creditors - after the bankruptcy procedure is completed) for holding the founder (participant) and (or) official of the debtor vicariously liable are also subject to consideration on the basis of a decision of the criminal prosecution authority to terminate the proceedings on a non-rehabilitating basis.

The courts should take into account that claims for bringing the founder (participant) and (or) official of the debtor to subsidiary liability and for collecting the amounts of creditors' claims on the grounds provided for in paragraph 1 of Article 6 of the Law are subject to consideration in compliance with the requirements provided for in parts three, four and five of Article 76 of the CPC, if any the force of court verdicts, relevant decisions of the criminal prosecution body or the court in the case of an administrative offense.

In accordance with paragraph 2 of Article 44 of the Civil Code, the founder (participant) of a legal entity or the owner of its property is not liable for its obligations, and the legal entity is not liable for the obligations of the founder (participant) of a legal entity or the owner of its property, except in cases provided for by the Civil Code, other legislative acts or constituent documents of the legal entity.

The Civil Code does not exclude cases where there are grounds for liability of the founder (participant) of a legal entity or the owner of its property in the norms of other legislative acts.

When considering cases of this category, the courts must proceed from the fact that in addition to the liability of the founder (participant) or the owner of the debtor's property for intentional bankruptcy, the bankruptcy officials are also liable for failure to comply with the requirements provided for in paragraph 2 of Article 11 of the Law upon the occurrence of insolvency.

If the debtor's property is insufficient to satisfy the claims of all creditors in full, officials who have violated the requirements provided for in subparagraphs 1), 2), 7) and 8) of paragraph 2 of Article 11 of the Law jointly bear subsidiary liability in accordance with the laws of the Republic of Kazakhstan in the amount of the bankrupt's obligations to creditors that remain unfulfilled as a result of bankruptcy procedures.

Paragraph 1 of Article 357 of the Civil Code provides for a condition for bringing to subsidiary liability, according to which, before making claims against a person who, in accordance with the law or the terms of the obligation, is additionally liable to the liability of another person who is the principal debtor (subsidiary liability), the creditor must make a claim against the principal debtor.

If the principal debtor has refused to satisfy or has not fully fulfilled the creditor's claim, or the creditor has not received from him a response to the claim within a reasonable time, this claim in the unfulfilled part may be presented to the person bearing subsidiary responsibility.

When considering cases of this category, courts should proceed from the fact that, according to the provisions of articles 72, 90 of the Law, during rehabilitation and bankruptcy procedures, the administrator forms a register of creditors' claims based on creditors' claims for the inclusion of their amounts owed.

To draw the attention of the courts to the fact that the requirement provided for in paragraph 1 of Article 357 of the Civil Code is subject to execution by creditors during the formation by the administrator of the register of creditors' claims of the debtor. Accordingly, its repeated execution in the course of filing a claim by the bankrupt manager to bring the founder (participant) and (or) the debtor's official to subsidiary liability and recovery of the amount of damage is not required.

According to paragraph 1 of Article 110 of the Law, after satisfying creditors' claims, the bankruptcy trustee submits to the court a final report on its activities, agreed with the creditors' meeting, with the attachment of the liquidation balance sheet and a report on the use of property remaining after satisfying creditors' claims.

The absence of a final procedural decision by the criminal prosecution authority on the conclusion of intentional bankruptcy is not an independent reason for refusing to approve the final report.

The expiration of the five-year term for bankruptcy proceedings does not release the administrator from the obligation to apply to the court for approval of the final report.

The final report of the bankruptcy trustee, in the absence of approval by the creditors' meeting, is submitted to the court for approval. The validity of the refusal to approve the final report is subject to assessment as part of the court's review of the application for approval of the report.

Administrative expenses in bankruptcy (rehabilitation) proceedings, in accordance with the provisions of articles 1 and 100 of the Law, include all costs of initiating and conducting bankruptcy (rehabilitation) procedures, including the amount of the administrator's remuneration. Administrative expenses are covered out of turn at the expense of the bankrupt's property.

To draw the attention of the courts that, according to Article 20 of the Civil Code, a citizen is liable for his obligations with all property belonging to him, with the exception of property that, in accordance with legislative acts, cannot be levied.

The property of a bankrupt individual entrepreneur should be understood as the personal property of an individual entrepreneur, including funds held in bank accounts of an individual.

The creditors' committee monitors the appropriate use of funds intended to cover administrative expenses.

Misuse, as well as overspending of the limit of funds for administrative expenses, is the basis for the removal of a bankrupt (rehabilitation) manager from managing the debtor's property and affairs, as well as for holding him accountable in accordance with the legislation of the Republic of Kazakhstan.

Paragraph 1 of Article 84 of the Law provides for the duration of the bankruptcy procedure, which is nine months and may be extended by a creditors' meeting to two years.

In cases where there are one or more grounds for extending the term of the bankruptcy procedure provided for in paragraph 2 of Article 84 of the Law, a second extension of the term of the bankruptcy procedure is allowed, taking into account which the total term of such procedure should not exceed five years.

Invalidate them:

1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 5 "On the practice of applying legislation on rehabilitation and bankruptcy";

2) Paragraph 22 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 2 "On Amendments and Additions to Certain Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedural legislation";

3) Paragraph 13 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 7 "On Amendments and Additions to Certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedural legislation".

According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the day of the first official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

A. Mergaliev

Judge of the Supreme Court of the Republic of Kazakhstan,

Secretary of the plenary session

G. Almagambetova

 

© 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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