Comment to the article Article 42. State registration and re-registration of legal entities of the Civil Code of the Republic of Kazakhstan
Registration of a legal entity, regardless of its type, is mandatory, because before registration, a legal entity simply does not exist; the moment of its creation and acquisition of legal capacity coincides with the moment of its state registration.
The registration procedure is established by the Decree on the State Registration of Legal entities.
The Presidential Decree referred to in paragraph 2 establishes an exhaustive list of documents and other materials that must be submitted for registration.
3the purpose of registration is that it:
a) confirms the fact of the formation of a legal entity;
b) allows to keep state records of all legal entities of the country, because they are entered into the unified state register through registration;
c) provides the possibility of state control over the activities of a legal entity;
d) creates conditions for publicity, since through the registration authorities any interested person has the right to get acquainted with all materials characterizing a legal entity, except, of course, those that are confidential or constitute a commercial secret.
Branches and representative offices, the legal characteristics of which are contained in Article 43 of the Civil Code and comments thereto, are registered at their location with the registration authorities operating there. Since branches and representative offices are not independent legal entities, they must submit copies of the decisions of the legal entities on the establishment of branches and representative offices, rather than constituent documents.
According to the new version of clause 4, branches and representative offices may not be specified in the charter of the legal entity that created them.
Registration should be distinguished from re-registration, which is carried out in the same body as the initial registration, but unlike it has no constitutive significance either for the creation of a legal entity or for its termination. The task of re-registration is to keep state records and include in the amount of information that may be requested by interested parties, changes made to the legal status of an already registered legal entity.
Paragraph 6 of the commented article lists the cases of necessary re-registration. The list is exhaustive.
If foreign founders form a legal entity on the territory of the Republic of Kazakhstan independently or jointly with Kazakhstani founders, it is registered in accordance with the established procedure and after registration acquires the legal status of a Kazakh legal entity.
Unlike legal entities established only by Kazakhstani founders, these legal entities are called enterprises with foreign participation, among which there are:
a) foreign enterprises in which the entire authorized capital is formed by foreign founders;
b) joint ventures in which the authorized capital is formed by both foreign and Kazakhstani founders. Both are Kazakhstani legal entities, but their registration requires additional documents confirming the legal status and solvency of their foreign founders.
Branches and representative offices of foreign legal entities established in Kazakhstan are registered in the same manner as Kazakh branches and representative offices. But even here additional documents are required.
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
