Features of the legal status of business entities with a special legal status (banks and financial-industrial groups)
EnverŠ° IsabaevŠ°,
Master of the Kazakh Academy of Labor and Social Relations, Almaty
As it known, President Nursultan Nazarbayev set an ambitious task for the society to enter into the list of the 50 most competitive countries in the world. “Kazakhstan is on the threshold of a new leap forward in its development. We must remove economically unjustified restrictions at the level of constituent participation of foreign investors in those sectors where this has not already been done, “the President of Kazakhstan emphasized in his Strategy-2050.”
In this regard, financial institutions in Kazakhstan, especially second-tier banks, face certain difficulties, primarily of a legal nature. A bank is a legal entity that is a commercial organization that is authorized to conduct banking activities in accordance with the Law on Banks and Banking Activity in the Republic of Kazakhstan.
Disclosing on the legal status of banks’ business, we note that Article 8 (1) of the Law “On Banks and Banking Activities” prohibits banks from carrying out transactions and transactions as entrepreneurial activities not related to banking activities or not provided for in paragraph 9 of this article and paragraph 12 of Article 30 of this Law, as well as the acquisition of stakes in charter capital or shares of legal entities, as well as the creation and participation in the activities of non-profit organizations, for an action membership in the National Chamber of Entrepreneurs of the Republic of Kazakhstan.
I would like to dwell in more detail on aspects of the legal status of non-resident banks in the Republic of Kazakhstan, as this is due to the attraction of foreign capital. In accordance with Article 17 of this Law, the shareholders of the bank may be both legal entities and individuals – residents and non-residents of the Republic of Kazakhstan (subject to the restrictions established by paragraph 5 of this article and Article 18 of this Law). However, these restrictions are for some reason established only for legal entities, as indicated in paragraph 5 of Article 17 “registered in offshore zones, the list of which is set by the authorized body, can not directly or indirectly own and (or) use, and (or) dispose of voting shares of resident banks of the Republic of Kazakhstan “. The most interesting is that this restriction does not apply to banks that are subsidiaries of non-resident banks in the Republic of Kazakhstan, having the minimum required rating of one of the rating agencies. From this legal rule it follows that a second-tier bank shareholder can be a non-resident-individual, and a shareholder of a subsidiary bank is a legal entity registered in off-shores. Further, in Article 18, paragraph 1, it is defined that “Parent bank in relation to a subsidiary bank may be non-resident banks of the Republic of Kazakhstan having a certain rating of one of the rating agencies. The list of rating agencies and the minimum required rating is established by the authorized body “. Based on this normative provision, in the case of a certain positive rating, the parent bank may become a subsidiary non-resident bank.
On the legal incident in the creation of branches and representations of non-resident banks, we can conclude by analyzing Article 29 of the Law. Paragraph 10 of Article 18 states that “A non-resident bank of the Republic of Kazakhstan shall have the right to open its representative office without obtaining the consent of the authorized body”. And further in paragraph 11, a mechanism was written that “the representation of a non-resident bank of the Republic of Kazakhstan within thirty working days from the date of registration in the justice bodies must notify the authorized body in writing about it,” and a list of documents follows. But point 12 of this article “the opening of a branch of a non-resident bank in Kazakhstan is prohibited, with the exception of cases provided for by the laws of the Republic of Kazakhstan”. Although, let us note that branches and representations in accordance with the Civil Code are not legal entities, and the only difference between them is that “the branch exercises all or part of the functions, including the functions of representation, and the representation protects the interests of the legal person committing from his name deals and other legal actions “(Article 43). Here it is more important that the opening of a non-resident bank branch is prohibited by law, but there are such legal norms that remove these restrictions. But for some reason the legislator did not bring these normative explanations or references to these laws. This, in my opinion, is a significant omission of the legislator.
The law provides for the legal status of a bank with foreign participation. “A bank with foreign participation is a second-tier bank, more than one-third of the placed shares of which are owned, owned and / or managed by: a) non-residents of the Republic of Kazakhstan; b) legal entities – residents of the Republic of Kazakhstan