On some issues of the application of legislation on limited and additional liability partnerships
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008 No. 2.
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For the purposes of uniform application of legislation regulating relations between participants in limited and additional liability partnerships and the resolution of disputes related to the shares of participants, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
The legislation regulating the activities of limited and additional liability partnerships, the rights and obligations of their participants, is based on the Constitution of the Republic of Kazakhstan and consists of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Law of the Republic of Kazakhstan dated April 22, 1998 No. 220-I "On Limited and Additional Liability Partnerships" (hereinafter referred to as the Law) and other regulatory legal acts.
The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
1-1. In the first part of Article 27 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), the definition of corporate disputes is disclosed through subject and subject criteria.
The subjects of a corporate dispute involving a limited liability partnership are:
a partnership as a legal entity on whose behalf its body has made a decision;
officials of the partnership are members of a collegial or sole executive body, members of the supervisory board (paragraph 2 of Article 41 of the Law, sub-paragraphs 3), 5) and 10) of the first part of Article 27 of the CPC);
members (founders) of the partnership, including former;
persons who joined the partnership as a result of the acquisition of a share, in accordance with the procedure established by Law (Articles 22 and paragraph 2 of Article 28 of the Law).
The methods of protecting the rights and legitimate interests of participants in a corporate dispute listed in paragraphs 1) to 10) of the first part of Article 27 of the CPC are not exhaustive. Legislative acts of the Republic of Kazakhstan may provide for other ways of protecting rights.
In accordance with the first part of Article 27 of the CPC, corporate disputes are assigned to the jurisdiction of specialized interdistrict economic courts and are subject to consideration in the order of claim proceedings.
If there is an arbitration agreement, a corporate dispute may be submitted to arbitration in accordance with Article 8 of the Law of the Republic of Kazakhstan dated April 8, 2016 No. 488-V "On Arbitration".
The footnote. The resolution was supplemented by paragraph 1-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
The authorized capital of a limited liability partnership is formed by its founders (participants) with the property and property rights listed in paragraph 2 of Article 115, Article 117 of the Civil Code and paragraph 3 of Article 23 of the Law, including the registration of the right of an individual to a conditional land share. The right to a conditional land share must be confirmed by a certificate issued in accordance with the procedure established by paragraph 5 of Article 103 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code).
The right to a conditional land share is understood as the right of an employee of a privatized agricultural organization and other persons, on the grounds and in accordance with the procedure provided for by the legislative act on privatization, to receive in kind a land plot that was previously part of the land use of a privatized agricultural organization.
The initial amount of the authorized capital is equal to the amount of the founders' contributions and may not be less than the amount equivalent to one hundred monthly calculation index as of the date of submission of documents for state registration of the partnership (hereinafter referred to as the LLP), with the exception of a limited liability partnership that is a small business entity, as well as a state–owned Islamic special financial company whose minimum authorized capital is it is defined by the zero level.
Within the period established by the decision of the general meeting, which should not exceed one year from the date of registration of the partnership, all participants of the LLP must fully contribute to the authorized capital of the partnership.
If a participant in the partnership fails to fulfill the obligation to contribute a share within the prescribed period, the partnership must contribute the part of the share not contributed by the participant at the expense of its own capital.
A participant who has not paid his share on time is obliged to compensate the partnership for losses caused by non-payment of the share, and also, unless otherwise provided by the founding agreement or the articles of association of the partnership, to pay the partnership a penalty in accordance with Article 353 of the Civil Code.
The share or part of it contributed to the authorized capital of the LLP at the expense of its own capital may be distributed among the remaining participants in accordance with the procedure provided for in Article 31 of the Law, or offered for acquisition by third parties (paragraphs 3, 4 of Article 24 of the Law).
If the unpaid part of the contribution has not been sold within the period specified in paragraph 2 of Article 24 of the Law, the authorized capital of the partnership is subject to reduction by this amount, and the shares of participants in the authorized capital are changed accordingly. In this case, if the amount of the authorized capital is less than the amount equivalent to one hundred monthly calculation index, the participants must make appropriate additional contributions to the authorized capital within one year. Otherwise, the partnership is subject to liquidation on the basis of a court decision at the request of an authorized state body or a participant in the LLP.
This rule does not apply to a limited liability partnership that is a small business entity, as well as a state-owned Islamic special financial company, the size of the minimum authorized capital of which is determined by the zero level.
The footnote. Paragraph 2 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
2-1. Immovable or movable things, property rights, including the right to a conditional land share, contributed to the authorized capital of a partnership as a participant's share, are subject to mandatory monetary valuation by agreement of all the founders or by decision of the general meeting of the participants of the partnership. If the value of the contribution exceeds the amount equivalent to twenty thousand monthly calculation index, the estimate of the participant's share must be confirmed by an independent expert.
The appraiser's conclusion must comply with the requirements established by the Law of the Republic of Kazakhstan dated November 30, 2000 No. 109 "On Valuation activities in the Republic of Kazakhstan".
The costs of assessing the contribution are borne by the founder (participant) of the partnership who is interested in monetary assessment of the contribution.
The footnote. The Resolution was supplemented by paragraph 2-1 in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication); dated 06/29/2018 No. 11 (effective from the date of the first official publication).
2-2. The right to a conditional land share is subject to monetary assessment based on the category of agricultural land (arable land, hay, pasture, irrigated land, etc.) and the bonus score indicated in the certificate of the right to a conditional land share.
The footnote. The resolution was supplemented by paragraph 2-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2).
2-3. If, as a share in the authorized capital of a partnership, a land plot belonging to a person by right of ownership on which real estate objects are erected is contributed, then both the land plot and the real estate objects erected on it are subject to monetary valuation.
If the right of land use is included as a share in the authorized capital of the partnership, and real estate objects have been erected on the land plot to be used by the partnership in economic activities, then both the right of land use and the amount of rent in respect of these real estate objects are subject to monetary assessment.
The footnote. The resolution was supplemented by paragraph 2-3 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2).
The ratio of each participant's contribution to the total amount of the authorized capital, unless otherwise provided by the founding agreement, is his share (in part of the whole or as a percentage) in the authorized capital. Any change in the size of the authorized capital associated with the admission of new members to the partnership or the withdrawal of any of the former members from it, entails a corresponding recalculation of the shares of participants in the authorized capital at the time of acceptance or withdrawal.
The shares of all participants in the authorized capital and, accordingly, their shares in the value of the LLP's property (share in the property) are proportional to their contributions to the authorized capital, unless otherwise provided by the constituent documents. At the same time, the right of participants to a share in the property is not real, but binding, which means:
The property of the partnership does not belong to the participants by right of ownership, except in cases when an agricultural land plot, the right to use an agricultural land plot, or the right to a conditional land share is included in the authorized capital.;
participants have no right to demand the allocation of their share in the LLP's property in kind, except in the case provided for in paragraph 3 of Article 80 of the Civil Code.
Considering that the participant's share in the authorized capital of the LLP is a set of his rights and obligations in relation to the partnership and his share in the assets of the LLP, its purpose is to:
to form the material base for the implementation of business activities of the LLP;
to ensure the fulfillment of the LLP's obligations to creditors;
ensure that the owner of the share receives the appropriate share of the LLP's net income;
to give the participant (the owner of the share) the right to participate in the management of the LLP's affairs;
if necessary, it can be used as a means of payment in settlements between the owner of the share and his business partners (by sale, transfer to trust management, as collateral, etc.);
In the event of liquidation of the LLP, its owner had the right to receive the corresponding value of his share and the value of the part of the property remaining after settlement with creditors, or by agreement of all participants in the partnership, a part of this property in kind.
The footnote. Paragraph 3 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 2 (effective from the date of the first official publication).
A participant in an LLP who has not contributed to the authorized capital may lose the right to a share based on a decision of the general meeting of the partnership's participants only after his share has been contributed by the partnership to the authorized capital at the expense of his own capital (paragraph 3 of Article 24 of the Law), distributed among other participants or acquired by third parties, or the LLP has carried out reduction of the authorized capital. The mere fact of a participant's failure to contribute to the authorized capital is not a reason for excluding the founder from the list of participants in court.
A participant in an LLP who has made a contribution may lose the right to a share only by forcibly repurchasing it.
The loss of the right to a share for any reason entails the withdrawal of the participant from the LLP.
The partnership, in accordance with the decision of the general meeting, has the right to demand in court the compulsory redemption of a participant's share in the following cases::
if they cause significant harm to the partnership or its participants (paragraphs 2, 3 of Article 34, subparagraph 9) of paragraph 2 of Article 43 of the Law);
in case of violation by a participant of his obligations to the partnership established by legislative acts or constituent documents (Article 82 of the Civil Code).
Significant harm caused to a partnership or its participants should be understood as such harm, the elimination of the consequences of which becomes difficult or impossible for the LLP or its participants.
When deciding whether the damage caused to the LLP or its participants is significant, the courts must take into account all the circumstances of the case in each specific case, including the consequences resulting from the damage, the LLP's property status before and after the damage, and the time it took to eliminate its consequences. The court's conclusions on this issue must be motivated.
A member of a partnership whose share is being forcibly purchased has the right to participate in the general meeting on this issue and express his opinion in accordance with the requirements of paragraphs 2 and 3 of Article 42 of the Law, but does not participate in voting and the number of votes belonging to him is not counted (paragraph 2 of Article 48 of the Law). A member of a partnership whose share is being forcibly purchased has the right to challenge such a decision of the general meeting only on the grounds of violation of the procedure for convening and holding the general meeting. The arguments of a partnership participant about disagreement with the grounds for share repurchase are subject to evaluation when considering the partnership's claim for compulsory share repurchase.
According to the provisions of articles 11, 12, 42 of the Law, a participant has the right, in accordance with the procedure provided for by the Law and the articles of association, to participate in the management of the affairs of the partnership. Unless otherwise provided for by legislative acts and constituent documents, the mere failure to ensure participation in the general meeting of a participant in a partnership cannot be a sufficient reason for the compulsory purchase of his share.
At the same time, if the constituent documents impose on the participant the obligation to participate in the management of the affairs of the partnership (paragraph 2 of Article 12 of the Law) and the violation of this obligation by the participant (due to the size of his share, affecting the competence of decision-making by the general meeting in accordance with paragraph 4 of Article 47 of the Law, creating obstacles to the activities of the partnership and its decision-making decisions necessary for its proper functioning) caused significant harm to the partnership or entailed other negative consequences for it., that partnership has the right to demand in court the compulsory purchase of such participant's share at a price determined by the partnership's agreement with the participant. If an agreement is not reached, the price of the share to be forcibly repurchased is set by the court at the market value determined by an independent appraiser based on international standards (by analogy with paragraph 3 of Article 34 of the Law).
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
An agreement on the alienation (assignment) of the right of a retiring participant in a business partnership to a share in the property (authorized capital) of the partnership or a part thereof, to which an individual is a party, is subject to notarization (paragraph 2 of Article 59 of the Civil Code).
Based on the requirements of paragraph 1-1 of Article 22 of the Law, paragraph 6 of Article 42 of the Civil Code, admission of a new participant and changes in the composition of participants, without making an entry in the register of participants of the partnership (maintained by the registrar) or, accordingly, re-registration of a legal entity, are invalid.
In this regard, the right of the acquirer to the share passes to him from the moment of re-registration of the partnership or making an entry in the register of participants in the partnership (paragraph 2 of Article 22 of the Law).
The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
The participant of the LLP, in accordance with the procedure established by Law, has the right to dispose of his share (part of it) in the property of the partnership.
Alienation by an LLP participant of his share (part of it) to third parties, pledge of a share (part of a share) to secure a participant's obligation to another participant or a third person is allowed, unless otherwise provided by the constituent documents. Prior to full payment of the contribution to the authorized capital, such alienation is allowed only in the part in which the contribution has already been paid. The constituent documents may provide that the sale of a share to a third party is allowed only under certain conditions (articles 29-30 of the Law).
A participant of the LLP has the right to sell or otherwise assign his share to third parties if other participants and the LLP refused to acquire it on the terms proposed by him. A third party should be understood as any person who is not a member of the partnership at the time of the sale of his share by the participant. If the participant of the LLP has not alienated the share to third parties, then in the event of changes in the terms of the alienation, he is obliged to again offer other participants or the LLP to acquire the share (the pre-emptive right to acquire the share). Only after the other participants and the LLP refuse to purchase the share on new terms, the participant can again offer it to third parties. Failure to comply with this procedure may result in invalidation of the transaction at the request of an interested party.
When selling a share (part of it) in violation of the pre-emptive right to purchase, any member of the partnership has the right, within three months from the day when he learned or should have learned about its sale, to demand in court the transfer of the rights and obligations of the buyer to him (paragraph 2 of Article 80, paragraph 1 of Article 180 of the Civil Code). A claim for invalidation of a transaction filed on such grounds is not subject to satisfaction.
An LLP cannot be required to acquire a participant's share.
However, if, in accordance with the founding documents of the LLP, it is impossible to alienate the participant's share (part of it) to third parties, and other participants in the partnership refuse to purchase it, then in accordance with paragraph 3 of Article 80 of the Civil Code, the LLP may be required to pay the participant its actual value or to provide him with property in kind, corresponding to this cost.
If the share of the retiring participant is acquired by the LLP itself, the share price is determined by agreement of the parties, and if an agreement is not reached, by the court (paragraph 3 of Article 32 of the Law). When determining the share price, the court takes into account the market price determined by an independent appraiser who meets the requirements established by the authorized body carrying out state regulation in the field of valuation activities based on international standards (by analogy with paragraph 3 of Article 34 of the Law).
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication)
Under gratuitous transactions (donation, bequest), the participants of the LLP do not have the right of pre-emptive acquisition of the participant's share.
The participant of the LLP has the right to sell or otherwise assign his share in the property of the partnership or part of it to one or more participants of this partnership at his choice. At the same time, a decision of the general meeting of participants, the consent of the LLP or other participants to make such a transaction is not required, except in the case provided for in paragraph 3 of Article 28 of the Law.
10-1. Termination of the right of land use upon expiration of the term for which it was granted to a participant in the partnership, as well as the withdrawal of a participant who contributed the right to a conditional land share to the authorized capital of the partnership, entails a reduction in the size of the authorized capital of the partnership. In this case, the remaining members of the partnership are required to make decisions and perform actions provided for in article 27 of the Law.
The footnote. The resolution was supplemented by paragraph 10-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2).
10-2. Upon leaving the partnership for the organization of peasant (farmer) farming or commercial agricultural production, the participant who contributed an agricultural land plot to the authorized capital of the partnership as a share has the right, in accordance with paragraph 3 of Article 101 of the Land Code, to receive this land plot in kind.
The land plot transferred to the authorized capital of the partnership only for use is returned in kind without remuneration.
The allocation (return) of an agricultural land plot in kind is not carried out during the period of agricultural field work, except in cases when such allocation is made with the consent of the participants of the partnership in accordance with the procedure established by Article 48 of the Law.
Upon withdrawal from the partnership, a participant who has contributed a non-agricultural land plot to the authorized capital of the partnership as a share has the right to alienate his share in the property of the partnership in compliance with the procedure established by articles 29, 30, 31, 32 of the Law.
The footnote. The Resolution was supplemented by paragraph 10-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication).
10-3. A participant who has contributed the right to a conditional land share to the authorized capital of a partnership as a contribution has the right, upon leaving the partnership, to receive in kind a land plot corresponding in size to the right to a conditional land share in order to organize a peasant (farmer) farm or other commercial agricultural production.
Several members of the partnership who have contributed to the authorized capital of the partnership the right to a conditional land share have the right to withdraw from the partnership and form a new partnership, production cooperative or other organization for agricultural production. In this case, the land plot to be allocated from the partnership's lands must correspond in size to the total amount of the right to a conditional land share of such participants.
The footnote. The resolution was supplemented by paragraph 10-3 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2).
10-4. A participant's application for withdrawal from the partnership and allocation (division) of a land plot in kind for the formation of a peasant (farmer) farm or other agricultural production is subject to consideration by the general meeting of the partnership's participants in accordance with the procedure established by the constituent documents. The application must indicate the location of the requested land plot.
The location of the land plot should be understood as the location of the requested land allocation as part of the partnership's land use in accordance with the identification documentation. The location of the land plot allocated in kind on account of the share, as well as the reimbursement to the partnership of costs incurred on the allocated land plot by the retiring participant, shall be determined by the general meeting of the partnership's participants in accordance with the procedure provided for in the partnership's constituent documents or by agreement of the parties.
In the absence of a procedure for allocating (dividing) a land plot in the constituent documents, the norms of paragraph 4 of Article 101 of the Land Code (paragraph 3 of Article 101 of the Land Code) are applied. The procedure for allocating a land plot established in this rule of law does not affect the exclusive competence of the general meeting of the partnership participants to make a decision on the allocation of a land plot.
The footnote. The Resolution was supplemented by paragraph 10-4 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
10-5. The decision of the general meeting of the partnership's participants on the location of the land plot to be allocated in kind from the partnership's lands may be appealed to the court.
When preparing a case for judicial review on the said dispute, the court should obtain an opinion from a specialist of the authorized state body in the field of land relations on the possibility of allocating a land plot in kind in the requested location. At the same time, the technological scheme of land use should be taken into account, which excludes, if possible, the establishment of land easements, the place of residence of the participant leaving the partnership, and other arguments of the parties that deserve attention.
When resolving this dispute, the court has the right to consider only the issue of the legality of the decision taken by the general meeting of the partnership's participants.
The footnote. The Resolution was supplemented by paragraph 10-5 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 3 (for the procedure of entry into force, see paragraph 2); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
The procedure for convening and holding a general meeting of LLP participants is established by Articles 46, 47 of the Law. The decision of the general meeting may be declared invalid in case of violation of the convocation procedure.
Violations of the procedure for convening a general meeting should be understood as a violation of mandatory norms established by law (for example, failure to comply with the deadlines for notifying participants, the absence of information in the notices about the time and place of the general meeting (paragraph 1 of Article 46 of the Law), failure to inform the participant of the partnership about the results of consideration of proposals on the agenda (paragraph 3 of Article 46 of the Law), general meeting of persons who do not have the authority to perform these actions, etc.), which entail or may entail a violation of the rights of participants (participants) in a limited and additional liability partnership.
A decision of the general meeting of participants taken in violation of the procedure for holding the general meeting and making decisions established by Law, the articles of association of the partnership or the rules and other documents governing the internal activities of the partnership (for example, if the general meeting did not establish a quorum before the discussion of issues on the agenda), as well as a decision of the general meeting that contradicts the law or the articles of association of the partnership, including a decision that violates the rights of a participant in the partnership, It may be declared invalid by a court in whole or in part upon the application of a member of the partnership who did not participate in the voting or voted against the contested decision (Article 50 of the Law). A statement of claim may be filed within six months from the date when a member of the partnership learned or should have learned about the decision, and if he participated in the general meeting that adopted the decision, then within six months from the date of the decision.
When challenging the decisions of the governing bodies of a legal entity, the appropriate defendant is the partnership as the legal entity on whose behalf the decision was made by its body. The participants of the partnership are involved in the case as third parties who do not make independent claims on the subject of the dispute.
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
The decision of the general meeting of the partnership's participants is subject to unconditional invalidation if:
Decisions on issues requiring a qualified majority or unanimity in accordance with the Law or constituent documents (paragraph 2 of Article 48 of the Law) were taken in violation of this rule.;
The decision was made on an issue not included in the agenda of the general meeting of the partnership's participants in accordance with the procedure established by law and the constituent documents (paragraph 1 of Article 48 of the Law);
The participant of the partnership, in accordance with the procedure established by law and the constituent documents, was not notified of the place and time of the general meeting of the participants of the partnership (paragraph 1 of Article 46 of the Law).
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
13-1. In the absence of a quorum, the general meeting of the partnership's participants is reconvened no later than forty-five days from the date of the first convocation and no later than thirty days before the date of its opening, in compliance with the rules established by Article 46 of the Law (paragraph 5 of Article 47 of the Law).
A reconvened meeting is valid regardless of the number of votes held by the members of the partnership present or represented at the meeting. Such a meeting may not take decisions on matters requiring a qualified majority of votes or unanimity if its participants collectively hold less than half of the total number of votes.
If the participants of the partnership present or represented at it have a total of half or more of the total number of votes, then the reconvened meeting is authorized to make decisions on issues requiring a qualified majority of votes or unanimity.
In such cases, the general rule on the competence of decision-making by the general meeting of the partnership's participants, who collectively hold more than two thirds of the total number of votes, established in paragraph 4 of Article 47 of the Law, does not apply.
The footnote. The resolution was supplemented by paragraph 13-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
The minutes of the general meeting of the partnership's participants are a document containing, in particular, information on compliance with the procedure for holding the general meeting of participants, the presence of a quorum, the results of voting and the decision taken on the agenda.
Information reflected in the minutes that does not correspond to the actual circumstances (for example, information is provided about a participant who did not participate in the general meeting, indicating his vote for or against the decision), may result in invalidation of the decision of the general meeting.
The minutes of the general meeting of the LLP participants, separately from the decision adopted by the general meeting, cannot be appealed in court. However, the actions of the persons responsible for maintaining the protocol may be appealed by any participant of the LLP in accordance with the procedure provided for in Article 50 of the Law if, in his opinion, it contains information that does not correspond to reality, which entails or may entail a violation of the rights of the participant.
14-1. Decisions on matters falling within the exclusive competence of the general meeting of participants are taken by a simple majority or a qualified majority of three-quarters of the votes of the participants of the partnership present and represented at the meeting, unless the articles of association of the partnership require a larger number of votes or unanimity for their adoption (paragraph 2 of Articles 43 and paragraph 2 of Article 48 of the Law).
If there is a dispute between the participants on matters falling within the exclusive competence of the general meeting, when the participants cannot make a decision due to the absence of a simple or qualified majority of votes or unanimity, the court may, at the request of the participant, consider only the legality of the decision taken by the general meeting. At the same time, the court has no right to resolve issues unresolved by the general meeting by a majority vote of the participants, due to their lack of jurisdiction to the court. The resolution of such a conflict of interests should be carried out by the participants themselves in accordance with the provisions of the Law and the founding documents of the partnership.
The footnote. The resolution was supplemented by paragraph 14-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
By virtue of the requirements of subparagraph 2) of paragraph 2 of Article 43, paragraph 3 of Article 51 of the Law, the members of the collegial executive body and the sole executive body are elected by the general meeting of participants for a fixed term, but not more than five years.
The powers of the sole or collegial executive body of the partnership after the expiration of the term for which they were elected (appointed) are extended for a period until the general meeting of participants makes a corresponding decision, if none of the parties has notified the termination of the employment relationship no later than the last business day before the expiration of the employment contract (paragraph 4 of Article 30 of the Labor Code Republic of Kazakhstan).
Based on the requirements of Article 50 of the Law and part one of Article 27 of the CPC, the claims of the partnership's participants to challenge the decisions of the general meeting on the election and early termination of the powers of members of the executive body (collegial or sole) are subject to consideration in specialized interdistrict economic courts in accordance with the provisions of the Civil Code and the Law, as well as the norms of labor legislation, if the participant, who is also a member of the executive body, has signed an employment contract.
A dispute at the request of a member of the executive body of the partnership (who is not a participant in it, who conducts the affairs of the partnership under an employment contract) regarding the early termination of his powers is subject to consideration in district (city) courts in accordance with the jurisdiction established by Article 26 of the CPC, based on the provisions of the Law and labor legislation.
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
15-1. When applying subparagraph 3) of paragraph 1 of Article 11 of the Law, the courts should bear in mind that the distribution of net income among the participants is attributed to the exclusive competence of the general meeting of participants, therefore, if such a decision is not taken, the recovery of part of the net income by the court is not carried out (Article 40, paragraph 2 of Article 43 of the Law).
Recovery of a portion of the net income at the request of a participant is possible only if the general meeting of the partnership members decides to distribute income among its participants and does not pay the net income in cash within one month from the date of the decision.
The footnote. The resolution was supplemented by paragraph 15-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
The participant's share may be contributed to the authorized capital of the partnership at the expense of the jointly acquired property of the spouses, which, by virtue of paragraph 2 of Article 33 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter - KBS), is the joint property of the spouses.
The share or part of it in the authorized capital of the partnership, which is jointly owned by the spouses, may be disposed of by the participant with the notarized consent of the spouse of the participant in the partnership in accordance with paragraph 3 of Article 34 of the KBS.
A spouse whose notarized consent to the transaction has not been obtained has the right to demand that the transaction be declared invalid in court within three years from the date on which he learned or should have learned about the transaction in the case provided for in paragraph 2 of Article 34 of the KBS.
In the event of a dispute over the division of jointly acquired property, the value of the share in the authorized capital of the partnership is included in its composition, proportional to the value of its property (assets) and must take into account the size of its liabilities (debts). In the absence of an agreement between the spouses on determining the value of the share in the authorized capital of the partnership, the court should involve an appraiser (auditor) or appoint an expert examination to determine the value of the share.
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 11 (effective from the date of the first official publication).
Disputes between participants and individuals related to the inheritance of participants' shares, the division of jointly acquired property and other similar disputes are subject to consideration by district (city) and equivalent courts.
A change in the number of LLP participants or the size of the shares is not a reorganization (paragraph 1 of Article 61 of the Law).
The liquidation of an LLP may be carried out by a decision of the general meeting of its participants. Unless otherwise provided by the constituent documents, a unanimous decision of the general meeting on the liquidation of the LLP is not required.
The footnote. Article 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
According to According to Article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
K. Mamie
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
J. Baishev
© 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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