of October 2, 2015 No. 5
About practice of application of the legislation on rehabilitation and bankruptcy
Having studied practice of application by courts of the legislation on procedures of rehabilitation and bankruptcy and for the purpose of uniform application of regulations of the current legislation about rehabilitation and bankruptcy, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. The legislation of the Republic of Kazakhstan on procedures of rehabilitation and bankruptcy is based on the Constitution of the Republic of Kazakhstan and consists of the Civil code of the Republic of Kazakhstan (further – group of companies), the Code of civil procedure of the Republic of Kazakhstan (further – GPK), the Entrepreneurial code of the Republic of Kazakhstan (further – the Entrepreneurial code), the Law of the Republic of Kazakhstan of March 7, 2014 No. 176-V "About rehabilitation and bankruptcy" (further – the Law "About Rehabilitation and Bankruptcy"), other laws and regulatory legal acts establishing features of application of procedures of rehabilitation and bankruptcy concerning certain business entities.
According to Item 2 of article 2 of the Law "About Rehabilitation and Bankruptcy" if the international treaty ratified by the Republic of Kazakhstan establishes other rules, than those which are provided by the Law then are applied rules of the international treaty.
2. Cases on bankruptcy, rehabilitations, the accelerated rehabilitation and about insolvency settlement, and also cases on attraction to subsidiary responsibility of officials (debtor) are considered by courts on general civil procedure rules with the features established by the Law "About Rehabilitation and Bankruptcy".
Cases of the specified category are jurisdictional to specialized interdistrict economic freighters of areas, the cities of Almaty and Astana and to consideration according to the procedure of the correspondence production are not subject.
3. According to article 3 of the Law "About Rehabilitation and Bankruptcy" of feature of application of insolvency proceedings concerning certain business entities depending on their legal status and activity can be established by the legislation of the Republic of Kazakhstan.
Features of forced reorganization and liquidation of banks and insurance (reinsurance) organizations are established by the bank law and the legislation on insurance and insurance (reinsurance) activity.
The bases of involuntary liquidation of the cereal-receiving and cotton-processing companies, features of realization of the estate and priority of satisfaction of requirements of creditors are provided in the Laws of the Republic of Kazakhstan of January 19, 2001 No. 143-II "About grain" and of July 21, 2007 No. 298-III "About development of cotton industry".
Legal acts establish separate features of procedures of rehabilitation and bankruptcy and concerning the accumulation pension funds, agricultural producers.
Application of insolvency proceeding taking into account legal status of business entity - individual entrepreneurs and peasant farms - is regulated by Article 21 of Civil Code and article 39 of the Entrepreneurial code.
Procedures of rehabilitation (the accelerated rehabilitation) are not applied to individual entrepreneurs and peasant farms.
In case of bankruptcy of the organizations and companies, the individual entrepreneurs who are subjects of natural monopoly or subjects of the market, holding the dominating or monopoly position in the corresponding goods market or having important strategic importance for economy of the republic capable to exert impact on life, health of citizens, homeland security or the environment, including the organizations which blocks of shares (shares) are carried to strategic objects according to the legislation of the Republic of Kazakhstan and also declared bankrupt at the initiative of the state, for the purpose of protection of interests of citizens and the state the Government of the Republic of Kazakhstan has the right to establish special conditions and procedure for realization of the estate and additional requirements to buyers of objects of the estate, and also to make the decision on acquisition by the national managing director of holding of the estate in case of bankruptcy of the organizations, which blocks of shares (shares) are carried to strategic
to objects according to the legislation of the Republic of Kazakhstan, or the organizations having important strategic importance for republic economy.
In case of bankruptcy of the legal entities performing ecologically dangerous types of economic and other activity statutory environmental audit of their activities according to the Ecological code of the Republic of Kazakhstan of January 9, 2007 No. 212-III is booked.
4. The application for recognition by the bankrupt of the absent debtor can be submitted by the prosecutor or any creditor of the debtor irrespective of the amount of monetary commitment and term of its execution.
If the accounts payable amount according to monetary commitments less established by the law, then court returns the application without consideration based on Item 1 of Article 43 and item 4 of article 44 of the Law "About Rehabilitation and Bankruptcy".
5. In case of acceptance to consideration of the applications of the debtor or creditor about recognition of the debtor by the bankrupt or application of the rehabilitation procedure the court should check whether it is signed by proper person (body), proceeding from constituent documents of the applicant.
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