of June 18, 2004 No. 5
About court practice of liquidation of the absent legal entities and the absent debtor, and also legal entities performing the activities with gross violation of the legislation
For the purpose of uniform interpretation and application in court practice of the legislation on liquidation of the legal entities performing the activities with gross violation of the legislation (daleeotsutstvuyushchy legal entities and the absent debtors), the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
1. Draw the attention of courts that liquidation of the legal entity is by a court decision made on the bases, stipulated in Item 2 Articles 49 of the Civil code of the Republic of Kazakhstan (further – group of companies) and other legal acts.
Features of the termination of activities of subjects of private entrepreneurship are stipulated in Article 21 Civil Code, Articles 39, 53 Entrepreneurial codes of the Republic of Kazakhstan, Chapters 7, of 9, of 9-1 Law of the Republic of Kazakhstan "About bankruptcy" (further - the Law).
2. For the absent legal entities and the absent debtors the legislation provides the special bases and the simplified procedure for liquidation.
According to the subitem 15) of article 1 of the Law, the absent debtor is debtor, residence or place of registration of which or the location of permanent body, and also participants and officials without whom the debtor cannot perform the activities cannot be established within six months.
According to subitems 3) and 4) of Item 2 of Article 49 of group of companies the legal entity can be liquidated if it is absent in the location or to the actual address if it has no founders (participants) and officials without whom the legal entity cannot function within one year if it performs activities with gross violation of the legislation which is expressed in systematic implementation of the activities contradicting the authorized purposes of the legal entity, implementation of activities without the proper license or activities prohibited by legal acts.
Liquidation of the absent legal entity and the absent debtor can be made only judicially.
The procedure for liquidation of the absent legal entity and the absent debtor is determined depending on availability or lack of accounts payable (creditors) at it.
3. Gross violation of the legislation when implementing activities of legal entities should be considered intentional or careless explicit and essential violations of regulations of the national legal system, the ratified international treaties regulating and (or) regulating the education, reorganization, liquidation, and also activities of the corresponding legal entity made by the founder or the physical person (persons) performing functions on management of this legal entity if such violation entailed or created real possibility of approach of negative actual or legal effects.
The signs of the absent legal entity listed in the subitem 3) of Item 2 of Article 49 to group of companies separately, and also absence of creditors at the legal entity are not the independent bases for liquidation of the legal entity.
Item 2 of Article 49 of group of companies the legal entity who is absent in the location or to the actual address, and also in the absence of his founders (participants) and officials cannot be liquidated according to the subitem 3) if this legal entity temporarily suspended the activities, however timely, at the scheduled time, represents the corresponding tax statements.
The legal entity who has no officials cannot be liquidated in that order, but there are founders (participants) who bear responsibility for the organization of activities of the legal entity and have the right to appoint (to choose) officials.
It is necessary to differentiate non-presentation of tax statements by the absent legal entity from violation of terms of submission of the reporting by the acting legal entity. The legal entities, founders (participants) or officials performing the activities and being in place of registration (i.e. not absent), but not representing at the scheduled time tax statements, bear responsibility for such violation according to the procedure, established by the legislation.
4. Requirements about liquidation of the absent legal entity, according to Item 3 of Article 49 of group of companies, can be shown in court by state body to which the right to submission of demand is granted by legal acts, and in bankruptcy cases - also the creditor. According to article 19 of the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget" (Tax code) such right is granted, in particular, to tax authorities.
Tax authorities have the right to make in courts claims for liquidation of the legal entity for the bases provided by subitems 1), 2), 3), 4) of Item 2 of Article 49 of group of companies.
The licensor has rights of presentation of the claim for liquidation of the legal entity in connection with implementation of activities without proper license.
According to Item 1 of article 133 of the Law of the Republic of Kazakhstan of March 1, 2011 No. 413-IV "About state-owned property" the republican state company is created by the Government of the Republic of Kazakhstan, and the utility state company - local executive bodies.
Liquidation of the republican legal entity is performed by authorized body of the corresponding industry in coordination with authorized body on state-owned property if other is not established by the laws. Liquidation of the utility legal entity is performed by local executive body or in coordination with the akim of the area (the city of regional value) and meeting of local community - the office of the akim of the city of district value, the village, settlement, rural district.
The claim of the public institution which is the founder of other idle public institution for liquidation is not subject to satisfaction as the liquidation procedure of such legal entity is performed according to Article 50 of group of companies the body which made the decision on liquidation, but not court.
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