Defense of the dissertation of Төлеубай Азат Маратұлы for the degree of Doctor of Philosophy (PhD) in the specialty «6D030100 - Құқықтану»
Defense of the dissertation of Төлеубай Азат Маратұлы for the degree of Doctor of Philosophy (PhD) in the specialty «6D030100 - Құқықтану»
L.N. Gumilyov Eurasian National University, a dissertation defense for the degree of Doctor of Philosophy (PhD) by Төлеубай Азат Маратұлы on the topic Legal status of commercial organization by specialty «6D030100 – Құқықтану».
The dissertation was carried out at the «Department of Theory and History of State and Law» of L.N. Gumilyov Eurasian National University.
The language of defense is russian
Official reviewers:
Ермухаметова Саулегул Раимовна - Candidate of Science
Асанова Саида Эргашевна - Doctor of Philosophy (PhD)
Temporary members of the Dissertation Committee:
Кусаинова Айнур Казыбековна
Енсебаева Анель Рахметжановна - Candidate of Science, docent
Juchniewicz Edward
Scientific advisors:
Kizdarbekova Antonina Serikovna
Mamedov Alizade Gurbanali ogly
The defense will take place on December 07, 2024, at 11:00 AM in the Dissertation Council for the training direction «8D042 – Law» in the specialty «6D030100 – Құқықтану» of L.N. Gumilyov Eurasian National University. The defense meeting is planned to be held online.
Link: https://sul.su/wGem
Address: 010008, Astana city, K.Satpayev street, 2, Main building, room 302.
Abstract (English):ABSTRACT to the dissertation research of Toleubay Azat Maratuly on the topic "Legal status of a commercial organization" for the degree of Doctor of Philosophy (PhD) in the educational program 6D030100 - Jurisprudence Relevance of the research topic. The Republic of Kazakhstan proclaims itself as an independent, democratic, secular, legal and social state, the supreme values of which are the individual, his or her life, rights and freedoms (clause 1 of Article 1 of the Constitution of the Republic of Kazakhstan). This fact contributed to the development and change of all existing branches of national legislation [ ]. Law is placed at the forefront in the development of the most important social relations in the country, including civil law relations. There is no doubt that the new economic reality has led to significant changes in Kazakhstan civil law, among which the strengthening of property relations, optimization of contract law, protection of personal property and non-property rights and other institutions, as well as the development of the institution of a legal entity can be highlighted. The right to engage in entrepreneurial activity is guaranteed by the Constitution of the Republic of Kazakhstan. Considering the system of regulation of this right, Kazakhstan has successfully integrated into the world economic community and has become an investment-attractive state. The national legal system plays an important role in this issue, including in the annual assessment of favorable conditions of doing business conducted by the World Bank in the form of the Doing Business report. A quarter of the business community of Kazakhstan is represented by legal entities. Therefore, it is not surprising that the institution of legal entities in Kazakhstan is developing in accordance with modern realities, trying to follow the best practices of corporate governance in developed countries of Europe and America. Considering the regular changes in the legal regulation of the domestic business environment, the research interest of legal scholars in the institution of commercial legal entities is increasing every year. This is supported by the key points in the Address to the Nation of Kazakhstan dated January 31, 2017, titled "Third Modernization of Kazakhstan: Global Competitiveness", in which the Head of State emphasized the importance of developing the business environment and the need for further improvement of conditions for entrepreneurship [ ]. The objectives set forth undoubtedly pertain to improving the conditions for conducting business, with commercial legal entities being the main driving force behind entrepreneurship. In the context of this study, interest in the regulation of the legal status of commercial entities is motivated by several factors. First, attention to the institution of commercial legal entities is increasing due to “blurring” of the actual boundaries of entrepreneurial activity influenced by digitalization and the deep integration of Kazakhstan into the global community and economic organizations. Second, despite the considerable study of the legal entity institution as a whole, there remains a significant body of questions within legal scholarship where there is no consensus among scholars. Third, despite numerous changes in Kazakhstan's legislation regulating the legal status and lifecycle of commercial legal entities, many deficiencies and gaps remain that require the attention of lawmakers. These shortcomings adversely affect law enforcement practices, hinder the protection of entrepreneurs' rights, and complicate efforts to attract direct investment. Fourth, with the introduction of the Entrepreneurial and Tax Codes and the consolidation of independent industry classifications of legal entities in them, there is a need to update and re-evaluate the established classification into commercial and non-commercial types of legal entities. Fifthly, the actively discussed aspects of participation of individual organizational and legal forms of commercial legal entities in public relations also give relevance to the problem under consideration. In particular, questions concerning the reasonableness of the presence in national legislation of “outdated”, from the position of some scientists, forms of legal entities, which complicates the actualization of national legislation from the position of its synchronization with the laws of OECD countries [ ]. All of this demonstrates the relevance of the issue under consideration. The object of this work consists of civil legal relations arising from the creation, operation, reorganization, and dissolution of commercial legal entities. The subject of the research is on the norms of national and foreign legislation that regulate the extensive issues related to the legal status of commercial legal entities, as well as practical law enforcement experience. The scientific conclusions and practical recommendations formulated in the context of this study can be applied when investigating the institutions and branches of law that directly or indirectly address the regulatory challenges associated with the activities of commercial legal entities. The target of this research is to conduct a comprehensive study of the legal status of commercial legal entities, analyzing their properties and characteristics, as well as existing definitions. Based on the findings and existing theories that shape the doctrine of domestic civil law, the work seeks to formulate proposals for the development of legislation in this area. To achieve this target, the following tasks need to be addressed: - study of the features of formation and evolution of the structure of a legal entity as a separate institution in the system of civil legal relations; - disclosure of the legal essence of the commercial nature of legal entities in the Kazakh legislation commercial organizational and legal forms in accordance with the Kazakh legislation; - analysis of legal regulation of issues of legislative norms governing the process of creation, reorganization and liquidation of commercial legal entities; - consideration of the features of the legal status of individual - analysis of organizational and legal forms of commercial legal entities, including in the aspect of the current regulatory continental and Anglo-Saxon legal systems through the prism of the current mechanisms of their legal regulation; - analysis of the established judicial practice in cases involving or in relation to commercial legal entities and issues of further development of legislation regulating the legal status of commercial legal entities in the context of achieving the above objectives. - analysis of Kazakh judicial practice in corporate disputes. Degree of Study of the Topic. A significant number of works have been dedicated to the legal issues surrounding legal entities lifecycle in general, and commercial legal entities in particular. The general questions regarding the legal status of legal entities have been addressed in the works of M.M.Agarkov, I.A.Pokrovskiy, I.T.Tarassov, G.F.Shershenevich, among others. It is important to note that the role of legal entities and their place within the structure of civil rights subjects has been particularly emphasized in the works of Yu.G.Basin, S.N.Bratus, A.Didenko, I.U.Zhanaydarov, K.M.Ilyassova, S.I.Klimkin, I.B.Novitskiy, M.K.Suleimenov, Yu.K.Tolstoy, R.O.Khalfina and others. Moreover, analysis of scholarly works indicates that a significant range of relevant issues related to the topic of this study remains underexplored and, at times, contentious among many scholars. This situation further confirms the relevance and validity of the chosen topic for the dissertation research. In fact, the breadth of the rules governing the institution of commercial legal entities has contributed to the emergence and development of corporate law in the Kazakh legal environment. Additionally, it can be confidently stated that the extensive regulations governing the institution of commercial legal entities have given rise to the phenomenon of corporate or shareholder law within the Kazakh legal environment. At the same time, the level of knowledge of individual concepts remains an open question throughout the development of domestic civilistic science. For example, these include the terms "legal personality" and "legal capacity" of a legal entity. Many conclusions that were formulated by various scientists at various stages of the development of domestic law do not currently meet the modern needs of law enforcement practice and require rethinking, analysis and additional assessment in the context of modern legal realities. Some works by the aforementioned authors focus on specific narrow aspects of the legal status of commercial legal entities, which hinders the formation of a comprehensive picture of the state of legal regulation concerning these legal constructs. It is worth highlighting only a few studies that provide a thorough analysis of the legal status of commercial legal entities. Among these studies is the collection of works by F.S.Karagussov titled "The Legal Status of Commercial Organizations under the Legislation of the Republic of Kazakhstan" published in 2016, which examines the legislative aspects of the legal status of commercial legal entities. Another notable work is "Fundamental Provisions of the Legislation of the Republic of Kazakhstan on Joint Stock Companies: Theoretical Foundations and Practical Aspects" also published in 2016. Among the works of M.K.Suleimenov special attention should be given to the six-volume monograph "Civil Law of the Republic of Kazakhstan: Experience of Theoretical Research" with its latest publication released in 2021. Analyzing foreign authors, it is worth noting the textbooks by T.N.Ponomareva "The Legal Status of a Commercial Organization as a Corporation" published in 2014 and "The Legal Status of Commercial Corporate Organizations" published in 2017. It should be noted that the topic of the dissertation research attracted the attention of many young scientists. At different times, various dissertations were completed, directly or indirectly touching upon the issues that are the subject of this study. For example, in Russia, the following works were defended by A.M.Belyalova on the topic "Legal regulation of the reorganization of commercial legal entities in Russia and abroad", Ye.G.Opykhtina on the topic "Commercial legal entities with a special legal status accumulating funds", Ye.I.Zakharova on the topic "Property isolation of commercial organizations as a sign of a legal entity", O.L.Rasskazova on the topic "Legal entities in the sphere of entrepreneurial (economic) activity in the Russian state: theoretical and historical-legal analysis", R.V.Maslennikov on the topic "Civil law regulation of the creation and activities of a production cooperative in the Russian Federation", N.A.Polygalova on the topic "Legal capacity of a joint-stock company under the legislation of the Russian Federation: nature, scope and dynamics" and others. In Kazakhstan, the works of candidate of legal sciences F.K.Shakirov were defended on individual aspects of dissertation research on the topic "Current issues of protecting shareholders' rights under the legislation of the Republic of Kazakhstan", candidate of legal sciences I.A. Kolupaeva on the topic "Legal status of a limited liability partnership in the Republic of Kazakhstan", candidate of legal sciences R.B.Dosybaeva on the topic "Legal status of legal entities with foreign participation under the legislation of the Republic of Kazakhstan", candidate of legal sciences Sh.Zh.Tashmukhambetova on the topic "Legal status of legal entities as subjects of foreign economic activity in the Republic of Kazakhstan" and others. Despite the wide attention to the issues of legal regulation of the activities of commercial legal entities, further study of their nature will be conditioned by constant regulatory changes, as well as the emergence of new aspects that must be promptly and effectively regulated by law. Methodological basis of the research. This study is based on a comprehensive set of scientific methods, including systemic analysis, dialectical reasoning, formal-logical analysis, comprehensive methods, and comparative legal research. Through a system analysis, the issues of the structure of a legal entity, the relationship (dependence) of this subject of civil legal relations with the global economy are studied, and through a system analysis, special industry classifications of legal entities are considered and the author's definitions of such concepts as "general legal capacity of a legal entity", "special legal capacity of a legal entity", "commercial legal entity" are formulated, and the definition of the term "entrepreneurship" is specified. The principle of historicism in dialectics allowed us to identify the most significant factors that influenced the development of legal entities since the times of Ancient Rome. Thus, economics turned out to be the main trend that had the most direct impact on the formation of the modern structure of a legal entity. Using the principles of the formal-logical method of research within the framework of this dissertation, we have identified new approaches of legislative classifications of legal entities, formulated and argued proposals for changing the current Kazakhstani legislation regulating the legal status of legal entities and the activities of their governing bodies. We applied a comprehensive research method when studying legislative structures affecting the activities of legal entities. In particular, legal regulation of the institution of commercial legal entities is considered in close historical connection with political science and economics, as well as in the context of digitalization at the current stage of development of the institution of commercial legal entities. The comparative legal method of research was applied in the study of commercial organizational and legal forms, thanks to which it was possible to establish significant conceptual differences in the entrepreneurial nature of business partnerships and state enterprises. In addition, by means of this method, the structures of legal entities in foreign legislation were examined. The regulatory framework of the work consists of the provisions of the Constitution of the Republic of Kazakhstan, the Civil Code, the Entrepreneurial Code, the Laws of the Republic of Kazakhstan "On Business Partnerships", "On Limited and Additional Liability Partnerships", "On Joint-Stock Companies", "On Production Cooperatives", "On Agricultural Cooperatives", "On State Property" and other legal acts. Theoretical and practical significance. The content and conclusions of this study can be used to consider issues related to the legal status of commercial legal entities in the context of teaching civil law disciplines in the implementation of educational programs of the Law group in the bachelor's and master's degrees of higher educational institutions. In addition, the study can be used in the interpretation of individual legal provisions, as well as reference material for persons interested in the problems of the legal status of commercial legal entities. The main findings can be considered as a certain contribution to the development of domestic doctrine on issues related to the legal status of a commercial organization. The dissertation is systemic in nature, its practical significance lies in the development, based on theoretical justification, of practical recommendations for the implementation of the norms of current legislation on the legal status of commercial legal entities, as well as its further improvement. An innovation in scientific research is that this research is one of the works containing the author's approach to conducting a theoretical and practical analysis of commercial legal entities and the author's assessment of the state of development of national legal regulation of commercial organizations. The main provisions submitted for defense: 1. The formation of organizational and legal forms of commercial legal entities in the continental legal system cannot be considered in isolation from the specifics of economic processes that occurred in different periods of the formation of legal regulation of their status and had a significant impact on the identification of specific features characterizing their nature in the modern doctrine. 2. Along with the existing classifications of commercial legal entities, which subdivide them into separate types depending on the right to property (ownership, other property rights), the average annual number of employees and the value of assets (entities of small, medium and large businesses), it is proposed to classify commercial legal entities into corporations and non-corporate legal entities. It is necessary to legislatively enshrine in the Civil Code of the Republic of Kazakhstan the concept of a corporation, taking as a basis its definition developed by the legal doctrine, as a legal entity based on membership. 3. It is proposed to understand a commercial legal entity as an organization whose main goal is to generate income, created in the organizational and legal forms established by law for the implementation of commercial (entrepreneurial) activities. 4. The legislation of Kazakhstan, defining the purpose of the activities of commercial legal entities, uses various terms in different regulatory legal acts: "income" (Civil Code of the Republic of Kazakhstan, Law on LLP), "net income" (Entrepreneurial Code, Law on Production Cooperative), "profit (income)" (Law on JSC). In order to have a uniform approach to defining the purpose of the activities of commercial organizations, it is proposed to use a single term "profit", since presence of income, due to which the working capital of a commercial legal entity is formed, that is foundation on which entrepreneurial activity is built. In this regard, it is proposed: - in part 1 of article 2 of the Entrepreneurial Code, in subparagraph 8) of paragraph 2 of Article 14, subparagraphs 6) and 8) of paragraph 2 of Article 17, paragraph 1 of Article 38, paragraphs 1, 2 and 3 of Article 40 and subparagraph 4) of paragraph 2 of Article 43 of the Law of the Republic of Kazakhstan "On Limited and Additional Liability Partnerships" the word "income" shall be replaced with the word "profit"; - in subparagraph 7) of paragraph 1 and paragraph 1-1 of Article 14, subparagraph 3) of paragraph 1 and paragraphs 1.1 and 2 of Article 63, paragraph 1 of Article 74 of the Law of the Republic of Kazakhstan “On Joint-Stock Companies” the words “profit (income)” shall be replaced by the word “profit”. 5. The creation of a legal entity is associated with state registration. At the same time, the state registration procedure includes several sequential actions. In this regard, it is important to determine the moment from which a legal entity is considered created. Taking into account the digitalization of business processes of the state service for registration of commercial legal entities, it is proposed to amend Part 3 of Article 42 of the Civil Code and set out as follows: “3. A legal entity is considered to be created from the moment of completion of its state registration and entry of information about the registered legal entity into the National Register of Business Identification Numbers.” 6. An analysis of law enforcement practice shows that there are gaps in the legislation regulating the process of registering limited liability partnerships with the participation of non-residents, which entail the recognition of the registration as invalid and a number of unfavorable consequences arising from this. In this regard, it is proposed to supplement part 2 of paragraph 8 of Article 6 of the Law of the Republic of Kazakhstan “On state registration of legal entities and registration of branches and representative offices” after the words “with a notarized translation into Kazakh and Russian languages” with the words “containing a page with a business immigrant visa, obtained in accordance with the procedure established by the legislation of the Republic of Kazakhstan”. 7. It is proposed to understand state entrepreneurship as the activities of state legal entities aimed at obtaining profit using property, production, sale of goods, performance of work, provision of services necessary for the development of the national economy and ensuring the national security of the Republic of Kazakhstan. 8. It has been established that the transformation of state legal entities created in the organizational and legal form of a state enterprise into non-profit joint-stock companies is quite widely used. However, the scope of application of such transformations is limited by Article 16 of the Law of the Republic of Kazakhstan "On Non-profit Organizations". We believe that the transformation of state-owned enterprises into non-profit joint-stock companies is of particular relevance in matters of privatization of state assets. It is proposed to supplement Article 16 of the Law of the Republic of Kazakhstan "On Non-Commercial Organizations" with subparagraph 6) of the following content: "6) non-profit joint-stock companies transferred to a competitive environment through privatization." 9. It is proposed to understand an agricultural cooperative as a voluntary association of individuals - citizens of the Republic of Kazakhstan and (or) legal entities - the beneficial owners of which are citizens of the Republic of Kazakhstan, as well as those who have not registered a marriage with foreigners or stateless persons, who make a decision at a constituent meeting to establish an agricultural cooperative. It is proposed to enshrine this in Article 101-1 of the Civil Code of the Republic of Kazakhstan. The proposed measures are aimed at improving certain aspects of legal regulation of the activities and status of commercial legal entities in the Republic of Kazakhstan. Provisions of the doctoral dissertation were studied in the scientific works of the applicant, published in such publications as the International Science Journal, Journal on Advanced Research in Law and Economics, Bulletins of the Karaganda and Eurasian National University named after L.N.Gumilyov, and submitted for discussion by the scientific community within the framework of a number of international scientific and practical conferences. The structure of the dissertation research is determined by the internal logic of the topic disclosure and includes an introduction, two sections, which include seven subsections, a conclusion, and a list of references. The volume of the research is 139 pages.
Conclusion of the Research Ethics Committee
Defense of the dissertation: https://youtu.be/iAWMiYDvBGg
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