The essential characteristic of the category "security" determines the methodological positions of the approaches of various authors to the study of its content and dynamics. Most of them consider a security as a legal document that fixes the legal relationship between the person who owns it and the person who issues it, and / or is obligated under it.
From these positions, the property and non-property rights of the owner are formulated, the security acts as a material carrier of the right, the right is, as it were, sanctified in it. This is a reasonable position, since chain papers with more than a thousand years of history were considered primarily as promissory notes.
Securities, in accordance with the norms of the Civil Code, can be objects property rights, and first of all - property rights. Coverage of the problem of the emergence and implementation of these rights first of all requires clarifying what securities are as an object of property rights. Theoretical works on this topic and the previous legislation in force gave a clear and unambiguous answer to this question 15. Currently, the civil legislation of the Republic of Kazakhstan also establishes a certain legal regime for securities, due to the level of economic development of the republic. 16
Clause 2 of Art. 115 of the Civil Code classifies securities as property that can act in property circulation as an object of civil rights. At the same time, this clause (as well as clause 3 of article 117 of the Civil Code) does not directly refer securities to the category of things, although this is confirmed by other articles of the Civil Code.
Art. 129 of the Civil Code determines that "a security is a document certifying, in compliance with the established form and mandatory details, property rights, the exercise of which is possible only upon its presentation." This definition gives rise to special characteristics of a security that distinguish it from other legally significant documents and underlie the legal regulation of the circulation of securities as an object of civil rights. These features of a security are as follows:
security - a document, the preparation of which is subject to strict legal requirements for its form and content;
a security certifies the right of its owner to demand from the entity specified in its text to provide ownership of strictly defined property (money, goods, other securities), and in some few cases - and other opportunities (for example, in the field of corporate governance). That is, it is the content of the security that gives this document a socio-economic value;
the security (document) and the property right certified by it are inextricably linked to each other so that for the exercise (including transfer) of this right, the presentation and transfer (or only presentation in the case of incomplete performance) of the original of the security is necessary. It should always be borne in mind here that a security certifies the right of its owner to demand performance on it and the corresponding obligation of the other party to provide this performance. No security can serve as confirmation of the mutual rights and obligations of the parties to this legal relationship, because such a provision contradicts the very legal nature of the security.
In business turnover, a security is used as a specific written form of a transaction designed to effectively mediate the circulation of property rights. As a result, a special legal regime was established in relation to securities, according to which they were recognized as an object of law.
Calling a security a document, the Civil Code thereby indicates that it is a thing, since any document is an object of the material world containing certain information, which is expressed in letters, numbers and other printed or handwritten symbols. At the same time, not every document is recognized as a security, but only one that is drawn up in compliance with the conditions (details) established by law and the actual possession of which gives the right to demand the provision of the benefits indicated in the document.
Obligatory details of a security are those listed in special regulatory legal acts. The legal force of the requirement to comply with all such details lies in the fact that their absence in the content of the document entails the invalidity of the security (clause 2 of article 131 of the Civil Code).
The requisites of a security, as a rule, are its name, series, number, circulation period, an indication of the entity obligated under the security, par value, amount of income (dividends) or remuneration (interest), place of performance under the security, and other conditions. And even in the case of a mass issue, securities of one issue have at least one requisite (for example, a number) that would distinguish them from each other.In particular, within the framework of any issue of shares, each of these securities corresponds to a certain share in the authorized capital of the issuer and confirms the respective powers of its owner. On the basis of the details inherent only to this security, its owner will be able to exercise his powers. For example, a shareholder will be able to receive a dividend due on a share (even bearer) only if this particular share is presented, which is identified on the basis of its own details. That is, the possibility of receiving dividends accrued on one share by presenting another share (even if it belongs to the same issue) is excluded, which confirms the irreplaceability and individual certainty of any securities.
The above allows us to agree with the opinion that securities as objects of civil rights are things individually defined, and therefore irreplaceable.
Securities are a special kind of thing. A security paper as a letterhead, as a sheet of paper does not represent any particular interest for its owner. The value of a security is based on the value of that material good, the right to receive which it certifies. The division of the document and the property right certified by it necessarily entails a loss of interest in the security on the part of its owner and other participants in civil circulation. In such a situation, the owner of the security will not be able to realize his property interest through it.
Thus, if the object of law is understood as everything that can serve as a means of exercising interest 18, then a security that no longer certifies any property right ceases to be a corresponding object of civil rights and, in essence, ceases to be a security.
Being the object of property rights, securities act as the subject of various civil transactions related to the transfer of ownership or ownership rights to them, that is, they have a sign of transferability. As a result of this, relations are formed between people regarding securities, which by their nature are proprietary legal relations.
Securities are the most important form of financial turnover in modern market conditions. The use of securities in the financial and commodity-money turnover allows you to dispose of large sums of money and significant mass of commodities, transferring them from one owner to another without moving banknotes and things that are subject to disposal. Instead of money and material values, documents are transferred that serve as symbols of the rights expressed by them, traditionally referred to as securities.
In accordance with the legislation of any state, there are many documents that in various ways confirm the civil rights of individuals and legal entities on certain material or spiritual objects, on the commission or refusal to perform certain actions.
As you can see, the security also confirms certain subjective civil rights of certain persons. But not all supporting documents relate to securities. The main purpose of the latter is not only to confirm the right, but also to transfer it. Therefore, along with legal documents, legal documents appeared, which, while also retaining the quality of confirming documents, formed a special group among all documents - securities. Thus, securities appeared as a means of activating commodity-money turnover - first of all, this is their intended purpose, it is this that determines their properties and characteristics.
According to their natural properties, securities do not represent any usefulness. Their true meaning is manifested in the confirmation, consolidation and transfer of the possibility of disposing of objects and rights: whoever is the holder (owner) of a security is the owner (owner) of the real right to a property benefit.
Therefore, the recognition of a security as an object of ownership (or other right - for example, a pledge) essentially means recognition of the ownership (or other right) to the subject designated by the security. As Yu. G. Basin writes, “it follows from this:
First, the continuity, inseparability of the transfer of paper from the transfer of rights.
Secondly, the circulating quality of the paper should be maximum and can be limited only by the need to protect the interests of those who legitimately acquire the security or possess it.
Third, the inseparability of the connection between the legal force of a security and the reality of the right expressed by it. The exercise of the right terminates the validity of the security. The absence of a security eliminates the possibility of enforcing the right.
Fourthly, it is unacceptable to prove that the right expressed by a security belongs to this person by presenting a certified copy of the security, witness testimony, a receipt and similar confirmations. In other words, the security is valid only in the original and is not subject to copying or any other confirmation.
Fifthly, it is unacceptable to recognize the right expressed by a security as invalid for reasons not related to a defect in the document as such (forgery or forgery). In this regard, it is important to note that transactions aimed at issuing or transferring a security are abstract (but not causal) transactions, the validity of which is not related to the validity of their grounds. At the initial issuance of a security, its issuer assumes responsibility for the legality of the right expressed by the paper, and all claims regarding defects in the basis can only be addressed to this issuer.
This additionally provides confirmation of the legality of the fact that the security belongs to its holder and the legality of his interests.
Sixth, the security must be issued in the prescribed form and have generally recognized (official) details, no deviations from which are allowed - signature, date, verbal designation of the security, the way of expressing the right serving as the content of the security, etc. Departure from the established requisites or the introduction of any, even agreed upon, changes in the security, violation of the form established for it makes the paper invalid (paragraph 2 of Article 131 Civil Code).” 19
Securities appear in civil circulation on the basis of an agreement. In essence, the security in its content lists the terms of this agreement. The issuer invites the potential owner of the security to accept (acquire ownership) it as a confirmation of the loan relationship or investment in the company on other terms. If the second party accepts the security, the agreement is considered concluded on the terms exhaustively listed in the text of the paper. Any security is considered to be freely circulating after acceptance of the original of the relevant document from the issuer. From this moment, the right of the owner of the security arises to demand performance on it upon the occurrence of the conditions specified in the document and the corresponding obligation of the issuer to provide this performance. From the same moment, the owner of the security acquires ownership of the document. This right, as G. Shershenevich rightly notes, “to a piece of paper gives the only opportunity to exercise the right contained in it.” Therefore, in the future, under the transfer of ownership of a security, we will mean the simultaneous transfer of the right expressed in it.
Securities as an object of property rights can freely circulate on the market with the extension of the legal regime of movable things to them. However, in this case, the circulation of securities is subject to specific rules for the transfer and exercise of ownership of them. These rules are as follows.
1. When transferring a security, it is sufficient (and at the same time necessary) to transfer the original document (Article 132 of the Civil Code). This rule is specified depending on the type of security.
In the case of bearer paper, the actual transfer of the original document means the transfer of ownership of it. When transferring ownership of an order security, the actual transfer of the original document must be accompanied by a transfer inscription (endorsement) on it in accordance with the requirements of the law.
The transfer of a registered security is not provided for by the Civil Code, since it is drawn up only in the name of a specific person. However, the transfer of its property right to be certified is allowed, but already in the order of assignment of the claim (Art. "Art. 339-347 of the Civil Code). Clause 2 of Art. 132 of the Civil Code determines that" when transferring rights on a registered security to another person, the transferred paper is canceled, and another security is issued in the name of the new owner. "Here I would like to note that the words" another security is issued "in practice can be understood inaccurately, and instead of the previous document, another security may be issued - an order or bearer, bond or share or a bill of exchange, etc. In addition, in cases of issuance of equity securities, the cancellation of a security and the issuance of another one in exchange for it means that each time the transfer of rights to a registered security, it will be necessary to go through the state registration procedure of the equity securities, the issue of which was registered with the exact indication of the quantity, numbers and series of the corresponding documents uments. Difficulties with such a formulation also occur in the field of accounting.
But even in this case, the transfer of rights under a registered security is impossible without the presence of the original document;
2. To exercise the right expressed in a security, it is necessary to present the original of the document to the obliged entity, the name (title) of which is indicated in the text of the paper.
In the event that bearer paper is presented for performance, the obliged entity must immediately and fully provide performance. Unfortunately, the Civil Code does not regulate the issue of the possibility of refusal to execute on a bearer security if the obliged subject discovers a forgery or forgery of a document, or if he has evidence that the paper fell into the hands of the bearer illegally. Similar norms were contained in the Fundamentals of Civil Legislation of the USSR and the republics of 1991. In this case, we believe that continuity would be advisable.
When presenting an order security for execution, the debtor is also obliged to submit the execution immediately, but has the right to verify, in addition to the authenticity of the document, the continuity of a number of endorsements made on the original paper, and, if the last endorsement is nominal, verify the identity of the bearer. And in this situation, the Civil Code does not quite clearly establish the corresponding powers of the person obliged under the order paper.
Upon presentation of a registered security for execution, the debtor has the right to verify the authenticity of the document and ascertain the identity of the bearer. At the same time, it is necessary to pay attention to the fact that the Laws "On the Securities Market" (Article 34) and "On the Registration of Transactions with Securities" provide for keeping a register of holders of registered securities. In this case, it is required that the name of the person entitled under such paper be entered in the registration book (register) of the obliged subject. An entry in the registry has an additional and obligatory legitimating meaning. When transferring rights under such documents, a corresponding change in the entries is made in the register. When exercising and transferring rights under such securities, it is necessary that the information of the register and the content of the document indicate the same person as the entitled subject. However, these rules constitute an exception to the rules concerning the legal nature of a security; “As noted above, such a legal regime, when property rights are confirmed by both a security and an entry in the register, does not correspond to the nature of the security. However, in order to provide additional guarantees of the observance of the interests of issuers and holders of securities, the legislator essentially set doubt the expediency of the existence of a legal institution of securities in the regulation of the market for equity securities.
3. When exercising and transferring rights certified by securities, two specific rules apply, which are not formulated by the norms of the Civil Code, but follow from their meaning.
A person who owns the original of a security is deemed to be its owner and a subject entitled to demand execution on it if the content of this paper indicates the legitimacy of the relevant claim. This is the manifestation of the principle of public credibility.
The rule on limitation of objections follows from the above principle. This rule means that it is unacceptable to refuse to provide execution on a security, to delay execution or to perform improperly with reference to any facts that were not reflected in the text of the paper. The obligated person to whom the security has been presented for execution may refuse, for example, if the document is presented earlier than the due date specified in it. Any departure from the content of the document is contrary to the nature of the securities. This situation is directly reflected in the legislation. Clause 2 of Art. 133 of the Civil Code says that it is not allowed to refuse to fulfill an obligation certified by a security with reference to the absence of grounds for the occurrence of this obligation or to its invalidity. In this, by the way, the abstractness of the security finds expression;
4. "The specific distribution of risk is inherent in the legal relationship with securities." This fact was noted by M. Agarkov in his "Teaching on securities". Indeed, the loss, destruction, serious damage to the security entails the risk of non-receipt of the performance due on it. The procedure of summoning proceedings for the restoration of rights under bearer securities is fraught with the danger of the impossibility of proving one's right to it in the event of a dispute, or the danger that someone will receive execution on the lost paper, and the debtor will refuse to re-execute, but already on the restored document ... If the debtor performed on paper, but did not demand that the original document be handed over to him or did not inflict an extinguishing inscription on it, he bears the risk that the paper will be repeatedly presented to him for execution. There are other aspects to this issue, but they, in our opinion, are the subject of independent study.
Obeying the stated rules, securities are circulated as a specific object of ownership. As such, securities can be the object of various civil law transactions: purchase and sale, donation, exchange, loan, pledge, inheritance, storage, insurance. Among the listed transactions, transactions on the alienation of property are the basis for acquiring ownership of securities. All other grounds for acquiring ownership rights provided for by the Civil Code (making or creating a thing, processing a movable thing, etc.) are not grounds for acquiring ownership of securities due to the legal nature of the latter as a form of transactions.
In business turnover, a security is used as a specific written form of a transaction designed to effectively mediate the circulation of property rights. As a result, a special legal regime was established in relation to securities, according to which they were recognized as an object of law. A security is a document, the preparation of which is subject to strict legal requirements for its form and content; it certifies the right of its owner to demand from the subject specified in its text, the provision of strictly defined property in ownership; a security (document) and the property right certified by it are inextricably linked.
Object of civil rights - material / non-material benefit, about which subjective rights and obligations arise in civil relations.
To objects civil law relate:
Securities;
Other property, including property rights;
Works and services;
Information;
Protected Results of Intellectual Activity and Equivalent Means
individualization ( intellectual property);
Intangible goods.
PROPERTY \u003d belonging to the subject of legal relations things + property rights and obligations.
Security paper - a document certifying, in compliance with the established form and details, property rights, the exercise or transfer of which is possible only upon its presentation. It is a movable thing, regardless of what right it expresses (the right to real estate or movable).
The Federal Law "On the Securities Market" is also regulated.
Signs of securities:
The close connection between paper and the rights embodied in it (the one who has the right to own the paper also has the right arising from it);
Literality (must be in writing, except for uncertified securities);
Strictly formal character (otherwise nullity), legitimation (designation) of the subject of law.
Features of securities:
with the transfer of the security, all the rights certified by it are transferred;
the transfer of rights is carried out by simple delivery of a security (bearer security), by making an inscription - endorsement (order security), by assigning a claim ( assignments) (registered security);
the transfer of rights certified by a security is recorded in a special register;
only the absence of obligatory requisites entails the nullity of the security;
the rights to lost bearer securities or order securities shall be restored in court.
By the method of issue, securities are:
1.Emission. They are issued in series, have equal scope and terms of exercising rights;
2.Non-emission. They are issued “piece by piece”, have an individual scope of rights in each document.
By the type of the issuer of the paper - the issuer:
state issued by public entities - state and municipalities;
private issued by private entities - legal entities and individuals
According to the method of designating the entitled person, there are:
registered, that is, issued in the name of a specific person with the right to transfer it to other persons by way of cession - assignment of a claim;
order, those. they are written out in the name of a specific person with the right to transfer it to other persons in the order endorsement, i.e. with a guarantee for the performance;
bearer- without specifying a specific copyright holder; have increased turnover capacity.
cash - to receive a certain amount of money - checks, bills of exchange, bonds;
commodity- to receive a certain amount of goods - bills of lading, warehouse receipts;
corporate, including participation in the management of a joint stock company - voting shares.
By the method of fixing rights:
documentary the established form with mandatory details and an increased degree of protection against counterfeiting;
uncertified an entry on the personal account of the register of securities owners, extracts from which are not considered securities.
VIEWS:
Stock- a security that certifies the right of its holder (shareholder) to participate in managing the affairs of a joint-stock company, to receive part of the profit in the form of a dividend and part of the property during its liquidation. Issuer - JSC. M. b. only registered.
Bond - a security certifying the right of its holder to receive from the issuer within a specified period of time a sum of money in the amount of its nominal value, as well as the interest fixed in it, or other property rights. Issuer - the state or various persons - participants in civil law relations. Bonds can be registered and bearer, with or without collateral, freely and restrictedly tradable, ordinary and convertible into shares.
Bill of exchange- a security that certifies the unconditional obligation of the drawer or the person indicated by him to pay a certain amount to the holder of the promissory note at the onset of the due date. Bill of exchange:
in a simple payer - the debtor is the drawer - the issuer, and the payee is the creditor - the holder of the bill - the remitter, or the person indicated by him, his order;
in a bill of exchange, the payers are the drawer - the main debtor or drawee, the persons who transferred it - the endorsers or drawers and who gave the guarantee in payment - are the avists, and the payee is the creditor - his last holder - the remitter.
A bill of exchange is a universal means of payment with a deferred payment.
Check - a security containing an unconditional written order of the drawer to the payer, most often to the bank, to pay the amount indicated in it to the holder of the check. Payable upon presentation by the holder to the payer. Revocation of a check before the expiration of the term for its presentation is not allowed. Checks:
nominal the check is not transferable;
transferable can be transferred according to the rules established for order securities.
Certificates of deposit or savings certificates - securities certifying the depositor's right to receive the deposit amount and interest at any institution of the bank after a specified period. Certificates can be registered or bearer, urgent or on demand, for a period of up to 1 year, with early presentation, interest is paid at a reduced rate.
Bearer bank passbook - a security certifying the right of its owner to receive the amount in accordance with the terms of the deposit. Individuals can be the owners of the book. The depositor's rights are transferred by simple delivery.
Bill of lading - a security, certifying the right of its holder to receive the cargo indicated in it from the carrier. The bill of lading is a document of title certifying the right of its holder to dispose of the cargo specified in it and can be registered, order and bearer.
Warehouse certificate - a security certifying the right of its holder to receive the goods specified in it from the warehouse:
-Simple is a bearer security, the transfer of rights for which occurs by handing it over to the new owner of the goods, and the pledge of the goods - by handing it over to the pledgee, and the pledger remains with a copy of it with a record of the pledge.
- Doubleis an order security and consists of two parts - a warehouse certificate and a pledge certificate - a warrant, which, when the goods are pledged, can be separated from each other and handled separately by means of endorsement. The warrant is handed over to the pledgee, the warehouse certificate remains with the pledger, who can dispose of the goods, except for taking it from the warehouse. Only the holder of the warehouse receipt and at the same time of the warrant can receive the goods from the warehouse.
Privatization securities - government securities of special purpose, which are used as a means of payment for the acquisition of objects of privatization.
A special kind of things are securities- documents that meet the requirements established by law and certify obligations and other rights, the exercise or transfer of which is possible only upon presentation of such documents (documentary securities).
The classification of securities is carried out according to the method of issuing securities:
- emission (issued in series, have the same volume and terms of exercising rights);
- non-issue (issued "piece by piece", have an individual scope of rights in each document);
by the method of designating the entitled person:
- registered (issued in the name of a specific person with the right to transfer it to other persons by way of cession - assignment of a claim);
- warrant (issued in the name of a specific person with the right to transfer it to other persons by way of endorsement, i.e. with a guarantee for performance);
- bearer (without specifying a specific copyright holder, increased turnover); - by the type of the person issuing the paper (issuer):
- government securities (issued by public entities by state and municipal entities);
- private securities (issued by private entities, legal entities and individuals);
- cash (to receive a certain amount of money - checks, bills of exchange, bonds);
- commodity (to receive a certain amount of goods - bills of lading, warehouse receipts);
- corporate (including participation in the management of a joint stock company - voting shares);
by the method of fixing rights:
- documentary (paper documents of the established form with mandatory details and an increased degree of protection against counterfeiting);
- uncertified (using electronic computers, etc.) (entry on the personal account of the register of securities holders, extracts from which are not considered securities).
The main difference between a security and other documents is its strict compliance with a certain form and the presence of mandatory details. Violation of at least one of these conditions entails its nullity.
Some types of securities:
Stock - a security certifying the right of its holder (shareholder) to participate in managing the affairs of the joint-stock company, to receive part of the profit in the form of a dividend and part of the property upon liquidation.
In terms of the scope of rights, ordinary (shareholders participate in managing the affairs of a joint-stock company) and privileged (shareholders do not participate in management in exchange for a firm dividend and an advantage in obtaining the liquidation balance), which, in turn, can be cumulative (unpaid dividend is accumulated and paid from profits of subsequent years) and convertible (into ordinary shares);
Bond - a security certifying the right of its holder to receive from the issuer within a specified period of time a sum of money in the amount of its nominal value, as well as the interest fixed in it, or other property rights (certain goods, etc.).
Issuer - the state or private individuals (mainly JSC). Bonds can be registered and bearer, with or without collateral, freely and limitedly tradable, ordinary and convertible (into shares);
Bill of exchange - a security that certifies the unconditional obligation of the drawer (the person indicated by him) to pay a certain amount to the holder of the promissory note upon the onset of the term provided for by the promissory note
A bill of exchange simple and translatable:
in promissory note the payer (debtor) is the drawer (issuer), and the payee (creditor) is the drawer (payee) or the person indicated by him (his order);
in bill of exchange The payers are the drawer (the main debtor or the drawee), the persons who transferred it (endorsers or drawers) and who gave a guarantee in payment (avists), and the payee (creditor) is its last holder (remitter). A bill of exchange is a universal means of settlements with deferral payment;
Check - a security containing an unconditional written order of the drawer to the payer (bank) to pay the amount indicated in it to the holder of the check. The check is payable upon presentation by the holder to the payer within the time period established by law. Revocation of a check before the expiration of the term for its presentation is not allowed. Checks can be registered and transferable: a registered check cannot be transferred, a transferable one can be transferred according to the rules established for order securities;
Certificates of deposit or savings certificates - securities certifying the right of the investor (respectively, legal or natural person) to receive, after a specified period, the amount of the deposit and interest in any institution of the bank.
Certificates can be:
- registered or bearer;
- urgent or on demand (term - up to a year, in case of early presentation, interest is paid at a reduced rate);
Bearer bank passbook security, certifying the right of its owner to receive the amount in accordance with the terms of the deposit. Individuals can be the owners of the book. The depositor's rights are transferred by simple delivery;
Bill of lading - a security, certifying the right of its holder to receive the cargo indicated in it from the carrier. The bill of lading is a document of title certifying the right of its holder to dispose of the cargo specified in it and can be registered, order and bearer.
In Art. 144 of the Civil Code of the Russian Federation, it is stipulated that the performance of the owner of the security is recognized as proper performance for a documentary security. The person who issued the security as well as the persons who provided the security for the performance of the corresponding obligation are the persons responsible for the performance of the book-entry security.
The rules regarding the restoration of rights to securities are a novelty civil law... The restoration of rights to a bearer security is carried out by the court on the basis of an application for recognizing it as invalid and restoring the rights to the security. The restoration of rights under an order security is carried out by a person who has lost it, by way of an announcement addressed to all persons obliged under it, indicating the reason for the loss. The restoration of rights under the lost registered documentary security is carried out by the court in the manner of special proceedings on cases of establishing facts that have legal significance at the request of the person who has lost the security.
A security is a document certifying compliance with
the established form and details of property rights
vA, the implementation or transfer of which is possible only with his
presentation.
A security is a movable item, regardless of how
she expresses some right (the right to real estate or movable).
Features of securities:
with the transfer of the security, all the rights certified by it are transferred;
the transfer of rights is carried out by simple delivery of a security
gi (bearer security), by making an inscription -
endorsement (order security), by assigning a claim
(cession) (registered security);
the transfer of rights certified by a security is fixed in
special register;
only the absence of mandatory details entails nullity
security;
rights for lost bearer securities or
naughty securities are restored in court.
The types of securities are: government bond; about-
ligation; share, bill; check; deposit and savings certificate
ficates; bearer bank passbook; con-
samant; privatization securities; other documents attached
legally recognized securities.
The subjects of civil rights can be:
bearer of the security;
the person indicated in the security (registered securities);
a person named in a security who can carry out
assign rights or authorize another person (order securities
On a bearer security, the rights certified by it
wa can be carried out by any person - paper holder. For re-
the granting of rights is sufficient to simply grant it. Bearer can
there may be promissory notes, bonds, stocks, checks, bank certificates
you bills of lading.
A registered security assigns rights to the person specified in
her. When executing such paper, it is necessary to verify the identity
act of the holder of the paper and the person indicated in it. Name valuable
the paper can be alienated by way of assignment of rights (cession). Names
securities can be stocks, bonds, promissory notes,
checks, bills of lading.
The rights under the order security belong to the person specified
mu in it, it can both implement them independently and
to mean another person for that. To execute such paper requires
the establishment of the identity of its holder with the person indicated in its
the text or the last transfer inscription - endorsement. Ta-
which transfer of rights differs from the assignment of rights in that a person, his co-
who did it, bears joint responsibility with the person who first
the issuer of the security, which increases confidence
owner in her performance.
An endorsement can be:
order - indicates the person who is executed
price of a security;
blank - without specifying the person to whom the
xia execution.
cash - the right to claim payment of a sum of money;
commodity - the right to certain things (con-
sament, warehouse receipt);
corporate - the right to participate in the affairs of the company (shares).
Uncertified securities.
They can be registered and order securities. The difference
from documentary securities is a special way of their
fixation (with the help of electronic computers
ki) by persons who have a special license for this. Unless otherwise
is not established by law, general laws apply to such securities
forks for securities.
The right secured by the security is confirmed by documentary
volume issued by an authorized person.
Any operations with such securities are carried out by means of
communication to an authorized person who completes the relevant
recordings and is responsible for their safety.
A security is a document certifying, in compliance with the established form and mandatory details, property rights, the exercise or transfer of which is possible only upon its presentation. Despite the fact that in this definition a security is considered as a document, in Art. 149 of the Civil Code of the Russian Federation, the existence of uncertificated securities is also allowed, that is, those that represent the consolidation of property rights not in paper, but in another form - using electronic computers, entries in the register of shareholders, etc. Paper is recognized as valuable not because of its inherent natural properties, but because it confirms the rights of its owner to certain benefits. The prevalence of securities is due to the fact that they serve as a convenient means of payment, serve as a credit instrument and provide a simplified transfer of rights to various goods.
The analysis of civil legislation allows us to highlight a number of the most significant features of a security as an object of civil law.
1. The security clearly states property rights (for example,
to receive a dividend by a shareholder from a joint-stock company that issued a share, to receive a certain product under a bill of lading or warehouse receipt, etc.), while the existence of these rights is indisputable.
2. Strict formality. This sign means that the security must be made in a specific form for it (for example, only documentary, that is, written) and contain mandatory details, the list of which is fixed in the law or in the manner prescribed by law by others regulations... For each type of securities, specific details are established, and the general details include, for example, the name of the security, an indication of the person who issued the security, the rights granted by the security to its holder, etc. At the same time, in accordance with clause 2 of article 144 of the Civil Code of the Russian Federation, the absence of mandatory details of the security or the discrepancy between the security and the form established for it entails its nullity.
3. Legality (public reliability) as a sign of a security means that a document can be recognized as a security only on the basis of the law or in the manner prescribed by law.
4. Liquidity means that a security remains an object of civil law relations as long as it is at least to some extent secured
the property of the person who issued the security, and accordingly, there is the possibility of the actual implementation of those rights that are enshrined in it. If the person who issued the security ceases to exist or becomes bankrupt, then such a paper loses its value. This actually takes it out of civil circulation due to the impossibility of exercising the rights enshrined in it.
5. The possibility of exercising the rights enshrined in a security only upon its presentation.
Securities are classified into types according to several criteria.
1. For subjects who own rights certified by a security (the so-called rights "from a security"), on the basis of Art. 145 of the Civil Code of the Russian Federation differ:
a) bearer securities (bond, bank savings
bearer book, etc.);
b) registered securities (share, etc.);
c) order securities (bill, check, etc.).
Bearer securities are characterized by the fact that the name of the legal holder is not indicated on them and therefore the rights enshrined in the security belong to the person who holds the security (bearer).
Registered securities, on the contrary, without fail have the designation of the name of the legal holder on the document itself, therefore all rights under such a security belong to him and to no one else (although other persons can exercise these rights on behalf of the holder on the basis of a power of attorney or an agreement with the holder) ...
Order securities differ in that they indicate the name of the first legal holder who has rights under this security. He has the right, by his order, made on the paper itself in the form of a transfer note (endorsement), to appoint another legal holder. Accordingly, all rights under this paper are transferred to him.
a) bond (government or non-government, issued in the
growth not by a public, but by a private person, for example, a joint stock company) -
this is a security certifying the right of its holder to receive from a person,
issued the bond (issuer), within the specified period of
the amount of its par value, as well as the percentage specified in it (or
goods). Bonds can be registered or bearer;
b) a check is a security containing an unconditional written order of the drawer to the payer (which is the bank) to pay the amount specified in it to the check holder. The check can be registered or ordered;
c) certificates represent a written certificate of the bank on the deposit of funds, certifying the depositor's right to receive the deposit amount and interest on it at any institution of the bank after a specified period. Depositors-organizations are issued certificates of deposit, and citizens - savings certificates.
d) bearer bank savings book - a security that certifies the right of its holder (individual) to receive an amount in accordance with the terms of the deposit;
e) bill of lading - a security document certifying the right of its holder to receive the cargo specified in it from the carrier. A bill of lading is a document of title (the transfer of a bill of lading means the transfer of goods) and can be registered, bearer and order;
f) share - a security certifying the fact that its holder (shareholder) has entered the nominal value indicated in it into the authorized capital of a joint-stock company and provides the shareholder with a certain amount of property and corporate rights, depending on its type Legal regime shares will be discussed in more detail below;
g) a bill of exchange - a security that is an unconditional obligation of the drawer or other payer specified in the bill of exchange to pay the amount of money specified in the bill to the bill holder upon the onset of the period specified in the bill. The legal regime of a bill is discussed in more detail below;
h) privatization securities named in Art. 143 of the Civil Code of the Russian Federation, which should be state documents for special purposes, to be used when acquiring privatized objects as a means of payment, are currently not in circulation. Previously issued (in 1993) privatization checks (vouchers), for a number of reasons based on the characteristics of securities discussed above, are very difficult to classify as securities;
i) other documents that, in accordance with the laws on securities or in the manner established by them, are classified as securities. In particular, in accordance with Art. 912-917 of the Civil Code of the Russian Federation, securities are a double warehouse certificate, each of its constituent parts separately (warehouse certificate and pledge certificate, that is, warrant), as well as a simple warehouse certificate. These securities provide their holder with a certain amount of rights to dispose of the goods in the warehouse. Double warehouse certificate, as well as its components are separately recognized as order securities, and a simple warehouse certificate is a bearer document. In accordance with Art. 13 of the Federal Law "On Mortgage (Pledge of Real Estate)" of July 16, 1998, a registered security is a mortgage bond, certifying the right of its holder to receive performance on a monetary obligation secured by a mortgage of the property specified in the mortgage agreement, without providing other evidence of existence of this obligation, as well as the right of pledge to the property specified in the mortgage agreement. It is possible that in the future other documents will also be classified as securities.
3. By the method of issuing securities, they can be classified into:
a) emission;
b) non-emission.
Equity securities are issued in series in series, and all securities of the same series have the same volume and duration of the rights granted to the holder (for example, shares, bonds, etc.).
Non-equity securities are issued per piece and have an individual scope of rights granted to the holder (for example, a bill of exchange, warehouse receipts, mortgage bonds, etc.).
The procedure for issuing these types of securities into circulation has significant differences.
4. The nature of the rights granted to the holder differ the following types valuable papers:
a) cash;
b) commodity;
c) corporate.
Cash securities give the right to receive a certain amount of money. These include, in particular, bills of exchange, checks, bonds, certificates and DR-
Commodity securities provide the right to receive certain things. These are bills of lading, warehouse receipts, sometimes bonds.
Corporate securities give the holder the right to participate in the management of the issuing organization. An example of such a security is voting shares that give a shareholder the right to vote at a general meeting of shareholders.
7. Shares and promissory notes as securities, features of their legal regime Shares can only be issued by joint stock companies. Their legal regime is determined in the Federal Law of December 26, 1995 "On Joint Stock Companies" (hereinafter - the Law on Joint Stock Companies),
Depending on the scope of rights granted to a shareholder, shares are classified into:
a) simple;
b) privileged.
Ordinary (ordinary) shares in accordance with Art. 31 of the JSC laws provide the shareholder with the following rights:
The right to receive a dividend, the amount of which depends on the profit of the JSC. If there is no profit, then the dividend is not charged or paid;
The right to participate in the general meeting of shareholders with the right to vote (one share gives one vote). In this regard, common shares are also called voting shares;
The right to receive part of the property of the JSC, which will remain after its liquidation.
Preferred shares in accordance with Art. 32 laws on joint-stock companies give the shareholder:
The right to receive a dividend, the amount of which does not depend on the profit of the JSC,
as it is determined in advance in the JSC Charter;
The right to receive liquidation value, which is paid in case of liquidation of the company, the amount of which is also determined in advance in its Charter.
As a general rule, preferred shares do not have the right to vote in the General Meeting of Shareholders, therefore they are called non-voting. However, in some cases provided for in Art. 32 of the JSC Law, they may have the right to vote:
a) in the cases provided for by the law itself:
When the issue of reorganization or liquidation of the company is being decided, as well as
if the issue of making such changes and additions to the Charter is being considered
JSCs that restrict the rights of this category of shareholders;
When the dividend on such shares is not paid or is not paid in full
volume until its full payment;
In accordance with Art. 25 of the JSC Law, the company has the right to issue one or several types of preferred shares, but their par value should not exceed 25% of the authorized capital of the company.
Depending on the circulating capacity, the shares are classified into:
a) shares with unlimited circulation (freely tradable);
b) shares with a limited circulation.
Unlimited shares are shares of open joint stock companies. They can be purchased by any person by open subscription, shareholders have the right to dispose of them freely, the consent of other shareholders is not required for this (clause 1 of article 97 of the Civil Code of the Russian Federation, clause 2 of article 7 of the law on joint-stock companies).
Limited circulation shares are issued by closed joint stock companies. In accordance with paragraph 2 of Art. 97 of the Civil Code of the Russian Federation and clause 3 of Art. 7 of the JSC Law, they can only belong to the founders and persons whose circle is predetermined in the JSC Charter. Shareholders of a closed company have the pre-emptive right to purchase shares sold by other shareholders of this company at the price of their offer to other (outside) persons. The charter of a company may provide for the preemptive right of the company itself to acquire shares sold by its shareholders, if the shareholders have not used their preemptive right to acquire shares.
A bill of exchange is an unconditional obligation of the drawer or other payer specified in the bill of exchange to pay, at the onset of the term specified in the bill, the amount of money specified in it to the bill holder. The legal regime of a bill of exchange is defined in the Regulations on a bill of exchange and promissory note of 1937, which was put into effect on the basis of the Federal Law of March 11, 1997 "On a bill of exchange and promissory note".
Issuance of a bill of exchange is always associated with some kind of obligation relationship between the debtor who is obliged to pay a certain amount to his creditor on the basis of an agreement between them (sale and purchase, lease, etc.). Sometimes, instead of actually paying money, the debtor issues a bill of exchange to the creditor, in which he undertakes to pay the required amount (usually with interest) by a certain date. Thus, payment is deferred (in connection with which the bill is called a form of commercial lending), the debtor becomes the drawer, and the creditor becomes the holder of the bill. The peculiarity of the bill is that it does not indicate for the execution of which transaction it is issued. In this regard, the obligation of the drawer to pay the bill of exchange turns out to be unconditional. This means that if the drawer in reality did not receive the property from the drawer due to the latter's violation of the obligation to provide it or for other reasons (recognition of the transaction as invalid, termination of the obligation due to the impossibility of performance) and therefore his obligation to pay under this transaction disappears, then despite this, the obligation of the drawer to pay the bill issued for the execution of this transaction remains. Thus, the bill is torn off from the basis on which it was issued.
Depending on the entity obliged to pay the bill,
two types of bills:
a) promissory note (solo promissory note);
b) bill of exchange (draft).
A promissory note is characterized by the fact that he is obliged to pay on it himself
the drawer.
A bill of exchange means that it is not the drawer himself who is obliged to pay the bill of exchange, but the person indicated in the bill (the payer). Issuance of a bill of exchange means that the drawer has transferred his debt under the bill to a third party (usually the debtor of the drawer under some obligation).
Both the promissory note and the bill of exchange are order securities. The rights to receive the amount under the bill can be transferred by the holder of the bill to another person with the help of a transfer inscription (endorsement), which is made either on the back of the bill itself, or on a sheet specially attached to it, which is part of the bill. Rights by means of endorsements can be transferred multiple times, therefore the right to receive performance on a bill belongs to the person whose name is the last in a continuous row of endorsements. A feature of a bill as an order security is that the holder of a bill who has made an endorsement (in connection with which he is called an endorser) in favor of another person (endorser) is liable to the latter not only for the validity of the right under the bill, but also for its actual implementation. This means that if the drawer or the payer specified in the bill of exchange refuses to perform performance (that is, pay the bill), the amount indicated in the bill may be recovered by the bill holder from the endorser. An exception is the case when the endorsement contains the clause "without turning to me."