The legislation of the Republic of Kazakhstan does not define the term “confidentiality”. Confidentiality translated from Latin means trust, the term is usually interpreted as the need to prevent the leakage (disclosure) of any information.
The current Law provides for an entire article regulating the confidentiality regime in bankruptcy. So the Law directly stipulates the responsibility of the administrator, the persons involved and the official of the authorized body for the disclosure or loss of information and documents on the financial and economic activities of the debtor.
Financial and economic activity is a set of actions for the production and sale of goods, services or the performance of work using the financial, labor and material resources of an enterprise. Obviously, almost all documents in one way or another related to the activities of the enterprise have confidential value. Some types of confidential information are further detailed and protected by other regulatory legal acts.
Commercial confidentiality
The Civil Code of the Republic of Kazakhstan protects information constituting a commercial secret when the information has actual or potential commercial value due to its unknownness to third parties, and there is no free access to it. The owner of the information, including the bankruptcy trustee, takes measures to protect its confidentiality and is responsible for its disclosure
The company has the right to keep confidential any information related to the activities of the enterprise, which should be fixed in the internal documents of the enterprise.
In addition, the legislation on accounting and financial reporting, as well as on joint-stock companies, directly relates to the confidentiality of the content of primary documents and accounting registers [1], including: (1) cash documents; (2) powers of attorney and a register of their accounting; (3) payment documents and advance reports; (4) acts and invoices on the acceptance / transfer of goods / work / services; (5) information set forth in the memorandum of association of the joint-stock company; (6) information on the availability, balances, movement and owners of equity securities and other financial instruments of AO.
Official secret
A legal entity created in the form of a state enterprise or institution may be liquidated through bankruptcy proceedings on a common basis. Meanwhile, the activities of such a legal entity may contain official secrets.
Official confidentiality is information having the nature of individual data that may be part of state secrets, the disclosure or loss of which may harm the national interests of the state, the interests of state bodies and organizations of the Republic of Kazakhstan.
Bank secrecy
In the course of their activities, the authorized body and the bankruptcy manager, in order to analyze financial activities, shall require the bank statements of the debtor and other information constituting bank secrecy, the protection regime of which is also regulated by the legislation on banks and banking activities.
Bank secrecy includes information about customers and correspondents of banks, their operations and relationships with banks related to obtaining banking services.
In particular, bank secrecy includes information: (1) on the availability, owners and numbers of bank accounts and correspondents of banks; (2) on balances and cash flows on these accounts and on the bank itself; (3) restrictions on the transferred accounts (arrests, pledges); (4) transactions of customers and correspondents and the bank itself; (5) on the availability, owners, nature and value of clients ’property held in safe boxes, cabinets and premises of the bank; (6) on obtaining loans by customers; (7) on operations related to payments and money transfers, including those performed without opening a bank account.
Tax secret
Responsibility for disclosing tax secrets lies with tax authorities and persons with access to tax secrets, which include a bankruptcy trustee. Responsibility is provided both during the period of fulfillment of their duties and after the completion of their execution.
Tax secrets include: some information received by the tax authority about the taxpayer (tax agent), including information obtained from taxpayers' tax returns, data on objects of taxation, restrictions imposed, initial taxpayer documentation, personal data of employees, documents on the movement of money and other assets, non-disclosure financial documents and any information related to commercial, banking, personal and official secrets, which became known to the tax authorities.
Confidentiality of personal data
During the bankruptcy procedure, the bankruptcy manager may become aware of the personal data of the officials and employees of the enterprise, which include identity cards, IINs, phone numbers, address of residence and residence, nationality, place of work, conditions of the employment contract, data on education, profession and position , data on income and property status, biometric data, etc.
Accordingly, the bankruptcy manager, who became aware of personal data that is restricted in access due to the legislation on personal data, as well as labor relations, is required to ensure their confidentiality.
Responsibility for disclosure in bankruptcy proceedings
Bankruptcy of an enterprise is not a basis for disclosing and disclosing commercial, official, banking, tax and other secrets protected by law, with the exception of cases expressly provided for by the Law. Accordingly, during the bankruptcy procedure, the bankruptcy manager, as the only governing body, is responsible for the safety of the listed information.
Criminal, administrative and civil law provides for liability for the disclosure of confidential information. The amount of liability depends on the amount of damage and the severity of the violation, and varies from 50 MCI to imprisonment for up to 3 years.