May 3, 2024

Answers to some questions about a private institution

 

The relations arising in connection with the creation, operation, reorganization and liquidation of non-profit organizations are regulated by the provisions of the Civil Code (hereinafter referred to as the Code) and the Law “On Non-Profit Organizations” (hereinafter referred to as the Law).
According to paragraph 1 of Article 105 of the Code, an institution is an organization established and financed by its founder, unless otherwise provided by legislative acts of the Republic of Kazakhstan, for the implementation of managerial, socio-cultural or other non-commercial functions.

In accordance with article 21 of the Law, the founding documents for the institution are the regulations (articles of association) approved by the owner(s) and the decision of the owner(s) on the establishment.
1) Does one non-profit organization have the right to be the founder of another non-profit organization?
According to paragraph 5) of paragraph 1 of Article 5 of the Law, for the implementation of statutory purposes, non-profit organizations have the right to create other legal entities, unless otherwise provided by legislative acts.

2) Does an individual have the right to be the founder of a Private institution?
According to paragraph 1 of Article 10 of the Law, a private institution is an organization that is not part of a state structure, created by individuals and (or) non-governmental legal entities to carry out managerial, socio-cultural or other non-commercial functions.

3) On determining the shares of participation in a Private institution with several founders?
In non-profit organizations, the authorized capital is not formed and there is no distribution by shares. According to paragraph 1) paragraph 1 of Article 35 of the Law, the sources of formation of the property of a non-profit organization in monetary and other forms in accordance with legislative acts are proceeds from the founders (participants, members).
According to paragraph 2 of Article 10 of the Law, the property of a private institution is assigned to it by the right of operational management.
According to paragraph 3 of Article 204 of the Civil Code, if an institution is created by several owners, the relations between them and the rights of owners to manage their property are determined by a constituent agreement or a similar agreement.
According to paragraph 4 of Article 35 of the Law of the Republic of Kazakhstan “On Non-profit organizations”, the contributions of the founders to the formation of the property of a non-profit organization in kind and in other forms, except monetary, are estimated in monetary form by agreement of all the founders. If the value of such a contribution exceeds the amount equivalent to twenty thousand monthly calculation indices, its assessment must be confirmed by an audit organization.
According to 205 of the Civil Code of the Republic of Kazakhstan, the owner of the property assigned to the institution has the right to withdraw this property or redistribute it among other legal entities created by him at his discretion, unless otherwise established by legislative acts of the Republic of Kazakhstan.
In case of liquidation, according to paragraph 3 of Article 28 of the Law, the founders retain ownership of the property of the institution.
Thus, the property of each founder is determined by an anticipatory agreement and is under the right of operational management of the institution.
Important: According to paragraph 3 of Article 21 of the Law of the Republic of Kazakhstan “On Non-profit organizations”, a private institution is responsible for its obligations with the money at its disposal. If they are insufficient, the responsibility for the obligations of a private institution is borne by its founder.

4) How to become the owner of a Private institution after its state registration?
Article 22 of the Law establishes that the charter of a non-profit organization must contain the conditions and procedure for admission to and withdrawal from a non-profit organization (if the non-profit organization has membership), other provisions that do not contradict the legislation of the Republic of Kazakhstan.
In accordance with subparagraph 1) Paragraph 2 of Article 39 of the Law, the adoption, introduction of amendments and additions to the constituent documents of a non-profit organization falls within the exclusive competence of the supreme body.
Based on the above, the questions you raise about joining the founders (participants) of the institution, making contributions, relate to the internal activities of the institution.
At the same time, according to article 14-2 of the Law “On State Registration of Legal Entities and Registration of Branches and Representative Offices”, making changes in the composition of founders (participants, members) of non-profit organizations, with the exception of political parties, is a notification procedure.
When changing the composition of the founders (participants, members) of non-profit organizations, it is necessary to additionally submit a list of founders (participants, members) of a non-profit organization with a notification indicating the surname, first name, patronymic (if it is indicated in the identity document), date, month, year of birth, individual identification number, place of residence, contact phone numbers, personal signature.

5) How is the responsibility to creditors distributed between two or more founders of a private institution?

According to article 10 of the Law, a private institution is liable for its obligations with the money at its disposal. If they are insufficient, the responsibility for the obligations of a private institution is borne by its founder.
In accordance with article 37 of the Civil Code, a legal entity acquires civil rights and assumes responsibilities only through its bodies acting in accordance with legislative acts and constituent documents.
The founding document of the institution is the charter, which may provide for other provisions that do not contradict the legislation of the Republic of Kazakhstan (Article 22 of the Law).
Based on the above, the distribution of responsibility between the participants relates to the internal activities of the entity.

6) The procedure for registration of a private institution
According to the Rules for the Provision of public services in the field of state registration of legal entities and registration of branches and representative offices, approved by Order No. 66 of the Acting Minister of Justice of the Republic of Kazakhstan dated May 29, 2020
List of documents for registration:
1) An application of the prescribed form (to be filled in at the PSC by an employee)
2) the decision of the owners to establish an institution;
3) the regulations (articles of association) approved by the owner in Kazakh and Russian languages;
4) a foundation agreement or a similar agreement (if the number of owners (founders) is more than one);
5) a receipt or other document confirming payment of the state registration fee to the budget;
6) Power of attorney for a representative
The registration period is 5 working days following the day of submission of the application with the necessary documents attached.
The registration fee is 6.5 MCI (Article 553 of the Tax Code of the Republic of Kazakhstan)