Rights of Founders (Participants) to the Property of Legal Entities Established by Them

📘 1. General Characteristics of the Article

Article 36 of the Civil Code of the Republic of Kazakhstan defines what property rights founders (or participants) retain with respect to the property of the legal entities they establish. This is one of the key principles for classifying legal entities according to their property regime.

The provision distinguishes three legal regimes:

🏛️ 2. Obligatory Rights (Paragraph 2)

“Legal entities whose participants retain obligatory rights to their property include business partnerships, joint-stock companies, and cooperatives.”

🔹 Essence:

A participant is not the owner of the legal entity’s property, but:

• has a share (unit) in the authorized capital;
• is entitled to receive dividends;
• has a right of claim (for example, to a portion of the property upon liquidation).

📌 Examples:

📌 A participant is a creditor with respect to the legal entity’s obligations, not a co-owner of its property.

🏢 3. Real Rights (Paragraph 3)

“...retain ownership rights or other real rights...”

This is characteristic of state-owned and treasury enterprises, as well as institutions operating under:

• the right of economic management (Civil Code of the RK, Article 200);
• the right of operational management (Civil Code of the RK, Article 201).

🔹 Examples:

📌 In this case, the founder is the owner of the property, while the legal entity merely possesses and administers it.

🏛️ 4. Legal Entities Whose Founders Retain No Property Rights (Paragraph 4)

“...include public associations, foundations, and religious associations.”

Founders:

• do not have rights of claim to the organization’s property;
• are not owners of the organization’s property;
• the organization acquires independent property legal personality.

🔹 Examples:

📌 These legal entities operate in the interests of their purposes, not their founders.

📜 5. Other Forms (Paragraph 5)

“...are determined by legislative acts...”

This refers to special organizational forms such as:

• notarial chambers;
• bar associations;
• self-regulatory organizations;
• private professional associations.

📌 Their legal status and the property rights of founders are governed by special laws:

• the Law “On Advocacy Activity”;
• the Law “On Notariat”;
• the Law “On Self-Regulatory Organizations”.

📚 6. Related Provisions

🧾 7. Practical Examples

🔹 Example 1: Nur-Sultan, 2022

A foundation was liquidated. The founder demanded the return of contributed funds.

📜 The court denied the claim: the property of the foundation is not returned to the founder, since a foundation is a legal entity whose founders retain no property rights.

🔹 Example 2: Shymkent, 2021

A participant of an LLP withdrew from the partnership and demanded payment of their share.

📜 The court satisfied the claim: the participant retains an obligatory right to their share in the authorized capital and may demand compensation upon withdrawal.

🌍 8. International Approaches

✅ UNIDROIT PrinciplesDistinguish founders’ property rights into:

• participatory (obligatory);
• titular (real/property rights);
• absence of rights (statutory autonomy).

✅ Civil Codes of CIS Countries (Russia, Belarus)Contain an identical model:

• business companies — obligatory rights;
• state institutions — real rights;
• non-profit organizations — no property rights.

✅ 9. Conclusion

Article 36 of the Civil Code of the Republic of Kazakhstan is key to understanding the property nature of legal entities. It:

• classifies legal entities according to the nature of property relations with founders;
• determines who retains rights to the created property and to what extent;
• ensures legal predictability and protection of the interests of founders, the state, and third parties.

🔹 Understanding this provision is critically important when establishing a legal entity, investing, withdrawing from membership, or liquidating an organization. 

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