WHAT SHOULD YOU DO IN CASE THE COMPANY HAS BEEN ILLEGALLY REGISTERED UNDER YOUR NAME?
There are cases where individuals unknowingly become founder of Limited Liability Partnership («LLP»). Often, this problem can arise when a person loses his or her identity documents. The loss of identity documents can lead to a number of problems. In this article we will look through a plan of action in case the LLP has been illegally registered in your name.
What should you do when you become aware of this problem?
1. First you need to find out exactly where the registration was carried out.
If you know the name of the LLP, you should make a formal written request for information on the existence of registered legal entities in which you are a founder. This request must be sent to the Justice authorities, namely the Department of Justice of the Republic of Kazakhstan. As an alternative way, you can check the data on its registration by obtaining the Certificate of Registration of Legal Entity from the database of legal entities through the Electronic Government for Citizens on the website Egov.kz.
2. After you have learned the place of registration, you need to obtain a duplicate of the charter of partnership.
In accordance with article 17 of the Law of the Republic of Kazakhstan "On limited and additional liability partnerships", the charter of partnership of the LLP is a document that determine the legal status of the LLP as a legal entity, and also, the charter of partnership must be approved by the general meeting of founders unanimously.
The charter and the decision on the establishment of the LLP must be signed personally by the founder, or by his authorised representative. This is an important point which will help you to invalidate the articles of association.
3. The next important step is appealing to the judicial authorities with a claim.
In accordance with article 68 of the Law of the Republic of Kazakhstan "On limited and additional liability partnerships", an LLP can be liquidated by a court decision if the partnership's registration is invalidated due to violations of the law committed during its creation, which are irreparable.
In case the charter was signed illegally and this violation is irreparable, this is the basis for invalidating the registration.
Also, in accordance with article 68 of the Law of the Republic of Kazakhstan "On limited and additional liability partnerships", a claim to liquidate a LLP on the above mentioned grounds may be brought to a court by interested parties, unless otherwise provided by legislative acts. On the basis of this, it is necessary to go to a court with a claim to invalidate the state registration of the LLP.
As the alternative you can contact law enforcement agencies, however, in practice, this does not give the desired result and the only effective way is to appeal to the judicial authorities.
4. How to proceed in the court?
In accordance with Article 91 of the Civil Procedure Code of the Republic of Kazakhstan, an expert examination is conducted in cases the circumstances relevant to the case can only be proved according to the result an examination based on special scientific knowledge.
In case the person did not sign the charter of partnership, but the signature is presented, it will be necessary to file a petition for the appointment of a forensic handwriting examination during the court hearing.
The conclusion of a forensic expert is a key factor in recognising the state registration of the LLP as invalid. In this case, the court will make a decision to invalidate the registration.
5. What to do after receiving a court decision that has entered into legal force?
After receiving a court decision, you should apply to the justice authorities with an official application for the executing of the court decision and providing a certificate confirming the cancellation of the registration of the LLP. After that, the justice authorities will have to exclude the illegally registered Partnership from the unified State Register of Legal Entities.
6. Which risks can arise if the registration of such a Partnership is not recognised as illegal?
As the practice shows, such Partnerships are used to carry out illegal business activities, which usually entail legal consequences that can bring problems with law enforcement agencies.
Also, a frequent problem occurs when a person wants to register his LLP, but the registering authority refuses state registration. This may be due to the fact that, in accordance with Article 11 of the Law of the Republic of Kazakhstan "On State Registration of Legal Entities and Record Registration of Branches and Representative Offices", the registering authority refuses state registration (re-registration) of a legal entity:
- if the legal entity or the only founder (participant) of the legal entity is an inactive legal entity;
- if an individual who is a founder (participant) and (or) head of a legal entity is the only founder (participant) and (or) head of inactive legal entities.
Based on above stated, upon learning about the fact of illegal registration of the LLP, you must take actions as soon as possible.