On the recognition of illegal actions to make changes to the account of the constituent documents of a legal entity, on illegal interference in internal issues of a legal entity and oblige the defendant to cancel the changes
No. 6001-23-00-6ap/1532 dated 19.10.2023
Plaintiffs: O.E.,. Zh.A.
Defendant: NAO "Government for Citizens State Corporation"
The subject of the dispute: on the recognition of illegal actions to make changes to the account of the constituent documents of a legal entity, on illegal interference in internal issues of a legal entity and oblige the defendant to cancel the changes
Review of the plaintiffs' cassation appeal. PLOT:
On April 24, 1996, the Department of Justice of the Zh. region issued an order for the state re-registration of the small private enterprise "K" into the general partnership "D and K" (hereinafter - PT), the founders of which were T.D. and D.S. in equal shares of 50% each. The head of the PT is registered Etc.
On December 30, 2009, at the general meeting of the participants of PT "D and K", it was decided to withdraw from the membership of the partnership of D.S. and join the membership of O.E. on the basis of a notarized purchase and sale agreement for a share of the authorized capital of PT "D and K" dated December 30, 2009. On January 6, 2010, the justice authorities re-registered the PT due to a change in the membership.
By the decision of the Council of Economic and Social Council of January 14, 2020, the statement of claim of D.S. to O.E., RSU "Department of Justice" on invalidation of the purchase agreement-
the sale of the share of the authorized capital of PT "D and K" dated 12/30/2009, concluded between D.S. and O.E., the decision of the general meeting of PT "D and K" dated 12/30/2009, the re-registration of PT "D and K" dated 01/6/2010 was satisfied. The purchase and sale agreement of the share of the authorized capital of PT "D and K" dated 12/30/2009, concluded between D.S. and O.E., the decision of the general meeting of PT "D and K" dated 12/30/2009, the re-registration of PT "D and K" dated 01/6/2010, were declared invalid. The decision has entered into force.
On August 18, 2021, D.S. filed a statement with the defendant, accompanied by a writ of execution and the above-mentioned decision of the specialized interdistrict economic court.
Pursuant to this court decision, the defendant cancelled the registration entry dated January 6, 2010 in the state database.
"Legal entities" (hereinafter referred to as GBDUL), while GBDUL restored the primary registration record - re-registration dated April 23, 1996.
The plaintiffs, disagreeing with the defendant's actions, challenged them in court, arguing that the defendant had made changes to the account of the constituent documents of the legal entity, while one of the participants in the PT, he was also the head, etc., had died at the time of the changes. The defendant registered the participant without the founding minutes of the founders' meeting, in which the participants of PT "D and K" recognize D.S. as a participant of PT. The defendant, knowing that the second participant had died and the re-registration of the PT was impossible, assumed the powers of a notary, the powers of the founders' meeting and the powers of the court, taking personal care of the fate of the legal entity in terms of its further business activities, on his own initiative, re-registered the PT "D and K".
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: By virtue of Articles 5-1, 2 of the Law "On State Registration of Legal Entities and Registration of Branches and Representative Offices" dated April 17, 1995 No. 2198, when carrying out state registration (re-registration) of legal entities that are commercial organizations, state registration of termination of their activities, registration (re-registration) and de-registration of their branches and representative offices, the defendant is competent, among other things, to carry out: state registration (re-registration) of legal entities that are commercial organizations, state registration of the termination of their activities, registration (re-registration) and de-registration of their branches and representative offices in accordance with this Law; maintaining a National Register of Business Identification Numbers. One of the purposes of the state registration of legal entities and the registration of branches and representative offices is to keep records of established, re-registered, reorganized and discontinued legal entities.
Paragraph 15 of the Rules for the Creation, Maintenance and Use of National Registers of Identification Numbers, approved by the Resolution
Government Decree No. 343 of April 27, 2007, the National Register of Business Identification Numbers is maintained by recording and updating data on legal entities (branches and representative offices) provided by registration authorities to the authorized body.
According to Article 21 of the CPC, judicial acts that have entered into force are binding on all state bodies, local governments, legal entities, officials, and individuals and are subject to execution throughout the territory of the Republic of Kazakhstan.
The court of first instance, guided by the above-mentioned norms, reasonably refused to satisfy the claim of O.E. and J.A. in full, since it was reliably established that the decision of the specialized interdistrict economic court of the J. region of January 14, 2020, which entered into force, invalidated: the purchase and sale agreement for the share of the authorized capital of PT "D and k" dated 12/30/2009, concluded between D.S. and O.E., the decision of the general meeting of PT "D and K" dated 12/30/2009, the re-registration of PT "D and K" dated 01/6/2010.
In this regard, the court of first instance came to the legitimate conclusion that the defendant, represented by the State Corporation, being the authorized body in the field of maintaining the National Register of Business Identification Numbers, was obliged to comply with the court decision that entered into force and cancel the re-registration dated January 06, 2010, thereby canceling the data of the legal entity dated April 24. updated in 1996.
The appellate judicial board reasonably agreed with the above conclusions of the court of first instance, which left the court's ruling unchanged.
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