ONCE AGAIN TO THE QUESTION OF LIABILITY OF PARTICIPANTS IN A LIMITED LABILITY PARTNERSHIP

Abstract

This paper reviews the Law of the Republic of Kazakhstan on limited and additional liability partnerships, as well as other legislative acts, in order to assess the quality of the provisions establishing liability of participants in limited liability partnerships.

A number of such grounds established in the legislation is indicated: delayed contribution into the charter capital; ones concerning obligations related to the creation of a partnership and those having arisen before its state registration; the case of the declared charter capital of a partnership exceeding the actual paid charter capital; bringing a partnership to bankruptcy; situations in which a main company is liable for obligations of its “daughter” company.

Thus, analysis of the Law on LLС and corresponding regulatory resolution of the Supreme Court leads to the conclusion that in the event that the participant doe not make its contribution to the authorized capital, this obligation may be imposed on the company itself. Consequently, this creates a situation in which such obligation cannot be performed due to the coincidence of the debtor and the creditor in one person.

 This article analyzes the consequences of assets’ attrition of a limited liability company below the stated authorized capital. A critical analysis of the present legal regulation of this situation was conducted by the author. It is proposed to return to the previously existing mechanism of assignment of subsidiary liability for the obligations of the LLC on the participants of such company.

  Subsidiary liability of participants is also possible in cases of deliberate and false bankruptcy.

  Relations between the main and subsidiary companies, including participation of creditors of the subsidiary company were also considered there.