Task #1 - protection of the rights and interests of business

The main task of the National Chamber of Entrepreneurs "Atameken" – is protection of the rights and interests of business. We present to your attention the most striking examples of positive resolution of cases in 2016.

The Case of Minakov

NCE "Atameken" has repeatedly proposed to delete article "pseudo-enterprenership" from the Criminal Code, as honest businessmen - contractors of pseudo-enterprises suffer from it. Attorney General supported the Chamber in its endeavor and ruled out 4 cassation protests. The loudest can be called the case of Evgeni Minakov, tax notifications for the payment of more than 14.5 billion tenge were received by bona fide contractors. Although these business entities paid their taxes to the budget. Today, they are exempt from payment of this colossal sum.

Sued not only purchased goods, but also its entire cost

In 2014 LLP "MMC" KazPolimetall" acquired from the Turkish company 4 units of expensive construction equipment. Unfortunately, the Kazakh company made late payment for the 4th unit: the debt of more than 460 thousand US dollars was formed. In connection with the violation of terms of payment the seller applied to the court to LLP "MMC KazPolimetall" with the requirement to return all 4 pieces of equipment and to recover the amount of debt and losses (more than 820 thousand US dollars). Return of equipment was due to delivery contracts: in the case of delayed payment by the buyer the seller has the right to terminate the contract and to return the equipment. In this case the payments paid by the buyer, are non-refundable.

The Court of First Instance partially satisfied the claims: the amount of debt recovered only for the last, 4th unit (more than 460 thousand US dollars.), as well as state duty and penalty. However, the appellate court decided, in addition, to return to the seller the 4th unit of equipment. The situation was unprecedented, in which by the court decision the Kazakhstani company lost not only purchased goods, but also its entire cost.

The Supreme Court refused to appeal the case, and LLP "GMK" KazPolitmetall" applied with a protest on judicial acts to the General Prosecutor's Office and the Business Ombudsman with a request to protect the property rights of the company. The office of the Business Ombudsman presented to the Prosecutor General's Office it own position on this issue. On 3^rd of August 2016 the Attorney General lodged with the Supreme Court the protest on the abolition of judicial decisions for the recovery of 460 thousand USD. On 31^st of August the Supreme Court satisfied the protest of the prosecutor general, the amount of money in the amount of 460 thousand USD remained with the businessman.

14 pharmaceutical companies were rescued

LLP "SK Pharmacy" is a single distributor to provide the population with medicinal products and medical devices within the guaranteed volume of free medical care. The National Chamber regularly receives complaints from suppliers (pharmaceutical companies) regarding initiation of lawsuits by LLP "SK Pharmacy" for the recognition of pharmaceutical companies as unscrupulous suppliers due to minor violations of the terms of delivery of medicinal products, the volume of which is less than 1% of the contract. So, in July 2016, LLP "SK Pharmacy" initiated law suits against 14 pharmaceutical companies of Kazakhstan, including the domestic producers of medicines that have invested billions of tenge in the construction of production facilities.

As a result of measures taken by the National Chamber, the aforementioned court cases were settled amicably out of court, and business entities were not included in the register of unfair suppliers.

All the property was arrested for 10 thousand tenge

LLP "Gibki Kamen" appealed to the Business Ombudsman against the actions of the private bailiff, who ignored the principle of correlating the volume requirements of the claimant and coercive measures. Thus, the amount of penalties amounted to 9910 tenge, but the decision of the bailiff put arrest on all movable, immovable property of the applicant. In this case, measures of compulsory execution were canceled within three months after the termination of the enforcement proceedings.

Office of the Business Ombudsman sent a letter to the Ministry of Justice of the Republic of Kazakhstan and the Republican Chamber of private bailiffs of the Republic of Kazakhstan on the need to take appropriate action. As a result, an inspection revealed violations of the law of RK "On Enforcement Proceedings and Status of Court Bailiffs" in this connection a disciplinary action was imposed on the private bailiff.

In addition, The Ministry of Justice sent a letter to the Republican Chamber of Private Bailiffs of Kazakhstan on the necessity to observe the rights and legitimate interests of the parties of enforcement proceedings and the need for outreach to private bailiffs on their compliance with legal requirements.

In addition, LLP "Kazakhstan investment company" addressed to the National Chamber with a complaint about the actions of the Almaty Department of Justice regarding the seizure of all movable and immovable property of the partnership, the total value of which exceeds the sum of 398 016 tenge, specified in the definition of a court. As a result of the measures the arrest of the current account in the bank of the second level of the Republic of Kazakhstan in the amount indicated in the definition of the court (398 016 tenge) was left.

On the issue of exceeding the axle load

IE "Sagatova T.A." addressed to the National Chamber to assist in the calculation of the appeal of collecting sums for excess axle loads (2817571 tenge). Mangistau Transport Prosecutor's Office conducted an audit of the applicant's arguments. The National Chamber found that the payment is made wrongly, in connection with which the prosecutor's office has sent a petition to the transport control inspection of Mangistau region. As a result, the amount of the collection has been reduced from 2,817,571 to 300 000 tenge.

The public authority owed to the entrepreneur400 million tenge

For a long time LLP "TOP LTD" could not receive payment in respect of construction works under a contract of public procurement. Construction department of Kokshetau owed to the business entity more than 130 million tenge. This problem was raised by NCE "Atameken" at the visiting session of the Council on the protection of the rights of entrepreneurs in the city of Kokshetau. Today, this amount of debt of the state body has been fully repaid.

However, the story did not end there. On the other obligations the local executive body should pay the partnership more than 270 million tenge. The Chamber has defended the interests of a business entity, and has already received a letter of confirmation that the amount was laid down in the regional budget. NCE intends to keep this matter under control, until the full repayment of the debt to the LLP.

But that's not all. Department of construction of Kokshetau applied to the court for recognition of LLP as an unfair participant of public procurement. The first session has already passed regarding these proceedings. NCE notified the regional chamber. "Atameken" will protect the interests of the entrepreneur in court.

Accrued additional 194 million tenge

In 2014 LLP "Iasi Group" applied to NCE on additional illegal charges of tax authorities in accordance with the law on transfer pricing. The total amount of tax assessments amounted to more than 194 million tenge. Of course, LLP appealed the calculation of the tax body in court. Legal proceedings went on with varying success, the case reached the Supreme Court. On 10^th of March this issue was considered by the Council for the Protection of the rights of entrepreneurs "Atameken". National Chamber appealed to the Prosecutor General's office in support of business. On 18^th of May the Supreme Court put an end to this issue, having made the decision in favor of LLP "Iasi-Group". Bearing in mind that similar problems may occur in the future, and the Supreme Court hopes that this decision will be a positive precedent for the cotton business in the future.

Scandal at the "Expo"

In 2014, the general contractors  for construction of objects for the exhibition "EXPO-2017" "Company ADS" and LLP "Sevstalkonstruktsiya" concluded a contract for deliveries of steel structures. Supplier in the face of LLP "Sevstalkonstruktsiya" fulfilled its contractual obligations in full, and the customer underpaid more than 106 million tenge out of 622 million tenge under the contract. The issue of liabilities of the general contractor had a wide public resonance, and currently, according to the applicant's information, the entire amount of debt was repaid.