Kazakh National University named Al-Farabi, civil law and civil
procedure, labor law, Associate Professor of the Department , candidate of legal sciences Mukaldieva G.B
2-year master Kenzhebayev Ruslan
The legal status of the joint stock society as a commercial legal entity in the Republic of
Kazakhstan
The Civil Code of the Republic of Kazakhstan is the first
joint-stock company is recognized as a form of legal entity. Thus, the personal
law of the companies approved by the personality itself, according to the
Article 34 of the Civil Code, the company that is compatible with the law of
the legal definition of property and personal non-property rights on its own
behalf, and to perform tasks related to the implementation of the court the
ability to act as a plaintiff and approved. Such legal subject to the effective
implementation of the activities of the joint-stock company will be deemed to
belong to the ownership of the property is the foundation of society.
The
company's third feature of the Civil Code and "Law" that the
provisions of limited liability for the debts of the company and its
shareholders and their property on the basis of isolation responsibility of the
property restrictions. In addition, Article 44 of the Civil Code, the Law on
Joint Stock Companies"and" in accordance with Article 85, the
participants of the joint-stock company own the property separate from the
property, which it owns all its obligations; is responsible for the property
and shall not be liable for the obligations of its founders and shareholders,
and in turn, the overall position of the joint-stock company can not be
responsible for the obligations of its shareholders and the extent of the value
of their shares by the company bears the risk of losses associated with the
activities.
The
fourth and fifth of the above-mentioned symptoms, joint-stock companyis not a
legal definition, but they are not the property of a person, created as a
result of the merger are important to any commercial organization. The company
created by the shareholders for the purpose of determining the legal and
regulatory; the latter in the law to limit the status of (the company) in the
provision of legal and moral autonomy. However, the company created by the
shareholders and the existence of significant shareholders, as well as being
interested in the success of its business, and the proper management of the
property and its fruit is not difficult to understand that is also interested
in the position.
According
to the article 6 of the law on joint-stock society or its organization in
accordance with the existing legal entity (or an existing legal entity) may be
formed by means of the reorganization. In other words, that the decision on the
establishment of a joint-stock company law and the law is defined as the
founders of the joint stock and (or) legal entities can be formed. In
particular, the law and the decision on the establishment of joint-stock
company is defined as the founders of the joint stock and (or) legal entities
that form.
The
first constituent meeting of the decision on the establishment of a joint stock
company, the founders: the company signed a contract to agree to the
establishment of the foundation, the selection of the company's registrar,
receives its charter, announced the decision on state registration of the
shares, the company's joint venture in accordance with the law and establishing
a procedure for the establishment of the founders the introduction of the
payment of the share capital of the company to identify persons carrying out
the assessment of the property, as well as its state registration on behalf of
the company to choose the persons authorized to sign the documents to be
adopted at the meeting.
All
the decisions of the Constituent Assembly are formalized by protocol. The
content of the foundation agreement difference
of commercial secrets of the constituent parties of the minutes of the
meetings of the same nature of the public or to a certain extent (the
foundation agreement difference again) provisioning and other authorized
bodies, counter parties to conclude an agreement on the terms (for example, the
registrar, valuers and the judicial authorities, the Financial Market and
Financial Institutions Supervisory Agency) to confirm the decisions made by the
founders of the society is or can be.
According to the
Kazakhstanlawswe are going to say about the two cases relating to the status of
a joint-stock company.
As it has been said
the joint-stock company is dedicated
for the large business groups and the conflicts in the former (between the
authorities and the shareholders of the company, shareholders and other risks)
will be guessed the governing by the
regulations according to the aims. The law does not prohibit the using this
form in the large and small businesssphere, but capitalization,
accounting, corporate management anddemands sufficient by the problems which
bring the difficulties to the
joint-stock society and, usually it does not allow the development of
small and medium-sized business.
The minimum amount of
the authorized capital refers to the
differences of the legal requirements of the joint-stockcompanyand a limited
liability company (the most popular form of small and medium-sized businesses)
as in outstanding example. So the "Act" in accordance with Article
10, the authorized capital’s minimum volume of
the company for the financial year (from the 1st of January to the 31st of December) is the monthly value of 50,000 timeswhich was marked by the law. In
turn, the amount of the charter capital of a limited liability company of such
monthly rates of [1] LLCmust not be
less than 100 the amount that is equivalent to the amount corresponding to the
value of the share capital of less than the minimum requirement of 500 times.
Moreover, for a number of types of business activities, the law only requires
the use of the legal form of a joint stock society, but also a high minimum
capital requirements, for example, banks (for the period of validity of the
claims, and the location of the branches of the banks ), which is in the amount
of one billion toten billion. High
performances were establishedfor pension funds and for some other types of
services.
Thus,
therequirementsof commercial organizations authorized to the capital that
organizational and legal formto be separated by volumes show the intention that legislator wants to use the joint-stock
formlarge businesses[2]. As the secondit’s connected with Kazakhstan
legislationthat is still granting for
the not commercial formation of in the
joint-stock form.(Article 34 of the Civil Code).It can not be ruled
outthat there was the organization
called Kazakhstan Stock Exchange in the practice of Kazakhstan .However, economic and legal point of view, the
effectiveness of any such forms of co-existence and validity were not observed.
As
well as, there will be some important problems connected with the disposal of
its shares in the management of non-profit organizations.(first of all, in
terms of limiting the competence of the shareholders).
Moreover,Kazakhstan legislation suggests a wide selectionfor the purpose of the
establishment of non-profit organizations and their subject, depending on the
composition of the founders[3].
However, no one of these forms does not take intothe
property interests of a non-profit organization of the founders, and at that
time the economic value of the shares (through its ownership of key competence)
is that the subject will buy the account the dividends on the shares of the
entity. Therefore, non-profit organizations in the form of joint-stock companyfirst of all
theoretically, unjustified and, secondly, for the economic system of any
significant economic or social benefits.
It is effective to denial of the
possibility of the establishment of joint-stock company in the form of
non-profit organizations . As though as it is shown in the literature that
there were opinions about corporations are non-profit organizations, the
development of corporate legal is
unreasonable. So, we should acknowledgethat legal entities that were
established in the form of joint-stock companies, corporate companies and
corporations must be considered as the commercial organizations[4].
An important symbolof joint stock company is the issue of shares
and its formation the arrangement of them between the shareholders [5]. As
it’s shown in the law on joint-stock
company the issue of shares and the
extent of their respective allocation will be given the key to the settlement
of the legal status of the company:the founding act of the agreement is
terminated by the state registration of the shares, after the company's shares,
and the others will be created.
References:
1. The Republic of
Kazakhstan "On Joint-Stock Companies Law"
2. The Civil Code of the
Republic of Kazakhstan
3. The Anatomy of
Corporate law; civil truth of the subject. / Ed. F.Sharipova.
4. KaragusovaF.S
"The foundations of corporate law and corporate law of the Republic of
Kazakhstan"
5. The Republic of
Kazakhstan "On the Securities Market Law"