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 a balance of interests of debtors and creditors.
One of the forms of protection of the legitimate interests of creditors in the framework of bankruptcy proceedings is to bring the guilty person to subsidiary responsibility.
To do this, the Law obliges the managers and other officials of the enterprise to apply to the court for declaring the enterprise bankrupt within 6 months if the signs of insolvency established in the Law "On Rehabilitation and Bankruptcy" occur.
If the requirement of the Law is ignored and as a result, one of the creditors 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 enterprise, for the repayment of which the property of the enterprise was not enough.
Thus, in accordance with paragraph 5 of Article 11 of the Law "On Rehabilitation and Bankruptcy", for violation of the provisions of subparagraphs 1) - 6) paragraph 2 of this article in the event of insufficient property of the debtor to satisfy the claims of all creditors, the officials of the debtor, whose duties include the fulfillment of the requirements provided for in subparagraphs 1) - 6) 2 of this Article, jointly and severally bear subsidiary responsibility in accordance with the laws of the Republic of Kazakhstan.
In the judicial practice in the Kostanay region, there has recently been a tendency to increase the number of claims for bringing founders, heads of enterprises to subsidiary liability, while there is a positive practice.
As a rule, such claims are filed by bankruptcy managers after performing all actions aimed at identifying accounts receivable, property and other assets, for the subsequent repayment of accounts payable.
It should be borne in mind that the liability provided for in paragraph 5 of Article 11 of the Law is aimed at ensuring the proper performance by the debtor's officials of the duties defined in sub-paragraphs 1) to 6) of paragraph 2 of Article 11 of the Law, and is aimed at protecting the rights and legitimate interests of persons participating in the bankruptcy procedure.
At the same time, according to Article 6 of the Law "On Rehabilitation and Bankruptcy", the founder (participant) and (or) officials of the debtor bear subsidiary liability to the creditors of the insolvent debtor with their property for deliberate bankruptcy. The official of the bankrupt compensates the owner of his property for the deliberate bringing of 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 by the owner of the insolvency of the enterprise, 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, if proven guilty, can determine the penalty in the form of a fine in the amount of 3000 MCI (which 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 senior positions at other enterprises or engage in entrepreneurial activities for up to three years.
Thus, the bankruptcy procedure does not mean that after the court's decision to declare a legal entity, an individual entrepreneur, bankrupt, the debtor's managers can be calm, because in the case of unfair conduct of their financial and economic activities and decision-making, which led to the onset of insolvency, the legislator has established serious mechanisms to protect the interests of creditors.