On March 26, 2014, The law of the Republic of Kazakhstan dated March 07, 2014 "on rehabilitation and bankruptcy" came into force, aimed at creating an effective, transparent and predictable bankruptcy system based on the balance of interests of debtors and creditors.
One of the forms of protecting the legitimate interests of creditors in the framework of bankruptcy proceedings is to hold the guilty person vicariously liable.
To do this, the Law obliges managers and other officials of the enterprise to apply to the court for recognition of the enterprise as a bankrupt within 6 months if signs of insolvency established in The law "on rehabilitation and bankruptcy" occur.
If the Law's requirement is ignored and one of the creditors eventually files for bankruptcy, the Manager who has neglected this duty will be forced to answer with all his personal property for those debts of the company that the company's property was not enough to repay.
Thus, in accordance with paragraph 5 of article 11 of The law "on rehabilitation and bankruptcy", for violation of the provisions of sub-paragraphs 1) - 6) of paragraph 2 of this article, if the debtor's property is insufficient to meet the claims of all creditors, the debtor's officials, whose duties include fulfilling the requirements provided for in sub – paragraphs 1) - 6) of paragraph 2 of this article, jointly and severally bear subsidiary responsibility in accordance with the laws of the Republic of Kazakhstan.
In judicial practice in the Kostanay region, there has recently been a tendency to increase the number of claims for bringing founders and managers of enterprises to vicarious liability, while there is a positive practice.
As a rule, such claims are filed by bankruptcy managers after performing all actions aimed at identifying receivables, property and other assets, for subsequent repayment of accounts payable.
Be aware that the liability under section 5 of article 11 of the Law aimed at ensuring the proper enforcement officials of the debtor's obligations defined in paragraphs 1) to 6) of paragraph 2 of article 11 of the Law, and aims to protect the rights and legitimate interests of persons participating in bankruptcy proceedings.
In this case, according to article 6 Of the law "on rehabilitation and bankruptcy", the founder (participant) and (or) officials of the debtor bear subsidiary liability to creditors of the insolvent debtor with their property for deliberate bankruptcy. The official of a bankrupt compensates the owner of his property for deliberately bringing the debtor to insolvency.
It should be noted that for persons who wish to use the bankruptcy system for fraudulent purposes, the liability is tightened.
For example, the deliberate creation or increase of an enterprise's insolvency by the owner, when the owner, realizing that it will not be possible to save the business, begins to give or sell property urgently at low prices, is qualified by the Criminal code of the Republic of Kazakhstan as deliberate bankruptcy. The court in case of proof of guilt can determine the penalty as a fine of 3000 MCI (and this is more than 7 million tenge), and imprisonment for up to 3 years. In addition, for this, you can also lose the right to hold managerial positions in other enterprises or engage in business activities for up to three years.
Thus, the bankruptcy procedure does not mean that after the court's decision to declare a legal entity or individual entrepreneur bankrupt, the debtor's managers can be calm, because when they conduct financial and economic activities in bad faith and make decisions that led to the onset of insolvency, the legislator has established serious mechanisms to protect the interests of creditors.