Registered uncertificated security. Invisible money market - concept and types of securities: stocks, bonds, bills. What are financial instruments

I had to slow down the process because of what I was doing. Without it, it is difficult to consolidate knowledge. But because of this, we deviated greatly from the schedule. By now we should have dealt with approximately the 300th question, but we are only passing the 100th. I hope we'll catch up again. Let's try to give more material today.

Let's start with a new topic 1.3 called " Concept and types of securities". The topic is complicated only because there is a lot of confusion for those who do not use words like assignor, avalist or bill of lading. But, as I wrote in, we made a simulator that will help consolidate the material covered. Immediately after the publication of this entry, we will replenish the database with new questions and answers. So let's begin...

Question code: 1.2.92

In accordance with the Civil Code of the Russian Federation, securities are:

I. 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);

II. Obligatory and other rights that are enshrined in the decision on the issue or other act of the person who issued the securities in accordance with the requirements of the law, and the implementation and transfer of which are possible only in compliance with the rules for accounting for these rights in accordance with the Civil Code of the Russian Federation (uncertificated securities) ;

III. Documents certifying, in compliance with the established form and required details, property rights, the exercise or transfer of which is possible only upon presentation.

Answers:

A. I, II only
B. I, III only
C. II, III only
D. All of the above

The Civil Code has Chapter 7 “Securities”. We will touch on this more than once today. Article 142 paragraph 1 describes first two point of the question, i.e. what are securities?

It is worth noting that securities can be certified or uncertificated. They differ simply and clearly from the name. Documentary are those that are available in physical form, i.e. "paper". Undocumented are those that do not exist in material form. Those. There is a certain entry in the register that the paper exists, but physically there is no paper. Previously they were in paper form, but now this occurs only for certain types of securities.

Question code: 1.2.93

Person responsible for execution of a certificated security:

I. Has the right to raise against the claims of the owner of the security only those objections that arise from the security or are based on the relationship between these persons;

II. Does not have the right to raise objections against the claims of the owner of the security that arise from the security or are based on the relationship between these persons;

III. Responsible for a security if the document came into circulation against his will;

IV. Does not have the right to refer to the objections of other persons. responsible for execution of this security in all cases.

Answers:

A. I, II only
B. II, III only
C. I only
D. All of the above

Question code: 1.1.95

Specify the securities provided for by the legislation of the Russian Federation:

II. Investment share;

III. Mortgage participation certificate;

IV. Issuer option;

V. Privatization securities;

VI. Bond;

VII. Bill of exchange;

VIII. Mortgage;

IX. Deposit (savings) certificate;

XI. Bank savings book to bearer;

XII. Bill of lading;

XIII. Simple warehouse receipt;

XIV. Clearing certificate of participation.

Answers:

A. All except V
B. All except VIII
C. All except XII
D. All of the above

A double warehouse receipt is a registered security consisting of two parts. One part can be used to pledge, and the other can be used to dispose of the goods (for example, for sale or exchange). To receive goods from the warehouse, you must present both parts of the certificate.

Question code: 1.1.105

A bearer security is a certificated security for which the person authorized to demand execution under it is recognized as:

Answers:

A. Owner
B. Person named in the security

Here again is the Civil Code, Chapter 7, Article 143. It is advisable to know it by heart. Point 2 : " A bearer security is a certificated security for which the person authorized to demand execution thereunder its owner admits. "

Question code: 1.1.106

An order is a documentary security for which the person authorized to demand execution on it is recognized as:

Answers:

A. Bearer of the security

B. The owner, if the security is issued in his name or passed to him from the original owner through a continuous series of endorsements

C. A person named in a security who can exercise these rights himself or appoint another authorized person by his order (order)

From there. Right next point. Civil Code Chapter 7: " An order is a certified security for which the person authorized to demand execution on it is recognized as its owner if the security is issued in his name or transferred to him from the original owner through a continuous series of endorsements."

Question code: 1.2.107

A registered security is a certificated security for which the person authorized to demand execution under it is recognized as:

I. The owner of the security, indicated as the copyright holder in the records maintained by the obligated person or a person acting on his behalf and having the appropriate license;

II. The owner of a security, if the security was issued in his name or transferred to him from the original owner in a continuous series of assignments of a claim (assignment) by making personal endorsements on it or in another form in accordance with the rules established for the assignment of a claim (assignment) );

III. Bearer of a security;

IV. A person named in a security who can exercise these rights himself or appoint another authorized person by his disposition (order).

Answers:

A. I, II only
B. I, III, IV only
C. III only
D. All of the above

From there. Civil Code Chapter 7: “A registered security is one for which one of the following specified persons is recognized as the person authorized to demand execution under it:

1) the owner of the security, indicated as the copyright holder in the records maintained by the obligated person or a person acting on his behalf and having the appropriate license. The law may provide for the obligation to transfer such records to a person who has the appropriate license;

2) the owner of a security, if the security was issued in his name or transferred to him from the original owner in a continuous series of assignments of claims (cessions) by making personal endorsements on it or in another form in accordance with the rules established for the assignment of claims (cessions)."

Question code: 1.1.108

If the document does not contain the required details of a documentary security, or does not comply with the established form and other requirements, the document:

Answers:

A. Not a security, but retains the value of written evidence
B. Is a security, but does not retain the value of written evidence.
C. Is not a security and does not retain the value of written evidence

1. Documentary securities can be bearer (bearer securities), order and registered.

2. A bearer security is a documentary security for which its owner is recognized as the person authorized to demand execution on it.

3. An order is a certified security for which the person authorized to demand execution on it is recognized as its owner if the security is issued in his name or transferred to him from the original owner through a continuous series of endorsements.

4. A registered security is a certified security for which one of the following specified persons is recognized as the person authorized to demand execution on it:

1) the owner of the security, indicated as the copyright holder in the records maintained by the obligated person or a person acting on his behalf and having the appropriate license. The law may provide for the obligation to transfer such records to a person who has the appropriate license;

2) the owner of a security, if the security was issued in his name or transferred to him from the original owner in a continuous series of assignments of claims (cessions) by making personal endorsements on it or in another form in accordance with the rules established for the assignment of claims (cessions).

5. The issue or delivery of bearer securities is permitted in cases established by law.

The possibility of issuing or issuing certain documentary securities as registered or warranted securities may be excluded by law.

6. Unless otherwise established by this Code, the law or does not follow from the peculiarities of fixing rights to uncertificated securities, the rules on registered documentary securities, the copyright holder of which is determined in accordance with the accounting records, apply to such securities.

Commentary to Art. 143 Civil Code of the Russian Federation

1. The main criterion for classifying securities as such in accordance with the definition given in paragraph 1 of Art. 142 of the Civil Code of the Russian Federation is a direct indication of the federal law or its definition of the procedure for classifying a document as a security. This article lists some types of securities and provides an indication of privatization securities that are expressly defined by other federal laws.

2. The first to be named are government bonds, which are a type of bond mentioned below. According to Art. 816 of the Civil Code of the Russian Federation, a bond is recognized as a security that certifies the right of its holder to receive from the person who issued the bond, within the period specified by it, the nominal value of the bond or other property equivalent. The bond also provides its holder with the right to receive a fixed percentage of the nominal value of the bond or other property rights.

The allocation of government bonds is carried out according to the subject composition - depending on the issuer. In this case, you can also distinguish municipal bonds and bonds of legal entities. The procedure for issuing state and municipal bonds is determined by Federal Law No. 136-FZ of July 29, 1998 “On the peculiarities of the issue and circulation of state and municipal securities”, according to Art. 2 of which the issuer of securities of the Russian Federation is the federal executive body, which is a legal entity whose functions, by decision of the Government of the Russian Federation, include the preparation and (or) execution of the federal budget. The issuer of securities of a constituent entity of the Russian Federation is the executive body of the constituent entity of the Federation, which carries out these functions in the manner established by the legislation of the constituent entity of the Federation. At the same time, state and municipal securities may be issued in the form of bonds or other securities related to issue-grade securities in accordance with the Law on the Securities Market, certifying the right of their owner to receive funds from the issuer of these securities or, depending on the conditions issue of these securities of other property, established percentages of the nominal value or other property rights within the time limits provided for by the terms of the said issue.

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Collection of legislation of the Russian Federation. 1998. N 31. Art. 3814.

Bonds can be: registered and bearer (uncertificated - only registered); freely circulating and with a limited circle of circulation; with or without security (collateral or otherwise); with a one-time repayment period and with repayment in series at certain periods, with a fixed or floating coupon rate; regular and convertible, i.e. transformable into shares. According to the subject composition, the Law on the Securities Market distinguishes bonds of the Bank of Russia (Article 27.5.1), exchange-traded bonds (Article 27.5.2).

Federal Law No. 152-FZ of November 11, 2003 “On Mortgage Securities” defines mortgage-backed bonds as bonds, the fulfillment of obligations under which is secured in whole or in part by the pledge of mortgage coverage, and residential mortgage-backed bonds as mortgage-backed bonds. coverage, which includes only claims secured by a mortgage on residential premises.

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Collection of legislation of the Russian Federation. 2003. N 46 (part 2). Art. 4448.

3. The concept of a bill of exchange is enshrined in Part 1 of Art. 815 of the Civil Code of the Russian Federation and is specified in relation to certain types of bills in the Convention on a Uniform Law on Bills of Exchange and Promissory Note (concluded in Geneva on June 7, 1930), the Regulations on Bills of Exchange and Promissory Notes and in the Law on Bills of Exchange and Promissory Note. A bill of exchange is a security that certifies the unconditional obligation of the drawer (promissory note) or another payer specified in the bill of exchange (bill of exchange) to pay a certain amount to the owner of the bill (bill holder) upon the maturity of the bill of exchange. A promissory note is an unconditional, abstract, strictly formal obligation or order to pay a specified sum of money. Judicial practice in this area is quite diverse; it was reflected in the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 4, 2000 N 33/14 “On some issues in the practice of resolving disputes related to the circulation of bills of exchange”, in the Review of the practice of resolving disputes related to the use of bills of exchange in economic circulation and other documents.

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For the USSR, the document came into force on February 23, 1937 // Collection of laws. 1937. Dept. II. N 18. Art. 108.

Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. N 10.

Thus, a bill of exchange must contain:

1) the name “bill” included in the text of the document and expressed in the language in which this document was drawn up; 2) a simple and unconditional offer to pay a certain amount; 3) the name of who must pay (payer); 4) indication of the payment term; 5) an indication of the place where the payment must be made; 6) the name of the person to whom or to whose order the payment should be made; 7) indication of the date and place of drawing up the bill of exchange; 8) the signature of the person who issues the bill (the drawer).

Unlike a bill of exchange, a promissory note does not contain an offer to pay a certain amount, but a promise to pay a certain amount and, accordingly, does not include an indication of the name of the payer.

4. A check as a type of security is defined in Art. 877 of the Civil Code of the Russian Federation, according to which a check is a security containing an unconditional order from the drawer to the bank to pay the amount specified in it to the check holder. Only a bank where the drawer has funds that he has the right to dispose of by issuing checks can be indicated as the payer of a check. The drawer is a person (legal or individual) who has funds in the bank, which he has the right to dispose of by issuing checks; check holder - a person (legal or individual) in whose favor the check was issued; payer - the bank in which the drawer's funds are located. In addition, § 5 of Ch. 46 of the Civil Code of the Russian Federation, as well as the Regulations on non-cash payments in the Russian Federation, approved by the Central Bank of the Russian Federation on October 3, 2002 N 2-P.

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Bulletin of the Bank of Russia. 2002. N 74.

5. According to Art. 844 of the Civil Code of the Russian Federation, deposit and savings certificates are securities that certify the amount of a deposit made to a bank, and the right of the depositor (certificate holder) to receive, upon expiration of the established period, the deposit amount and the interest stipulated in the certificate in the bank that issued the certificate or in any branch this bank. In case of early presentation of a savings (deposit) certificate for payment by the bank, the deposit amount and interest on demand deposits are paid, unless the terms of the certificate establish a different interest rate. Relations regarding these securities are also regulated by the Regulations on savings and deposit certificates of credit institutions, approved by letter of the Central Bank of the Russian Federation dated February 10, 1992 N 14-3-20, the Regulations on the procedure for maintaining accounting records of operations related to the issue and redemption of savings cards by credit institutions and certificates of deposit approved by the Central Bank of the Russian Federation on December 30, 1999 N 103-P. The right to issue a savings certificate is granted to banks subject to:

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Bulletin of the Bank of Russia. 2000. N 1.

— carrying out banking activities for at least two years;

— publication of annual reports (balance sheet and profit and loss account), confirmed by an audit organization;

— compliance with banking legislation and regulations of the Bank of Russia;

— compliance with mandatory economic standards;

— the presence of a reserve fund in the amount of at least 15% of the actually paid authorized capital;

— fulfillment of mandatory reserve requirements.

Certificates can be issued either one-time or in series. Certificates must be urgent.

6. Bearer savings book, according to Art. 843 of the Civil Code of the Russian Federation, unlike a personal savings book, is a security. The savings book must indicate and be certified by the bank the name and location of the bank, and if the deposit is made to a branch, also its corresponding branch, the account number of the deposit, as well as all amounts of funds credited to the account, all amounts of funds written off from accounts, and the balance of funds in the account at the time of presentation of the savings book to the bank. Unless a different state of the deposit is proven, the deposit data indicated in the savings book is the basis for settlements on the deposit between the bank and the depositor.

The issuance of a deposit, the payment of interest on it and the execution of the depositor's orders to transfer funds from the deposit account to other persons are carried out by the bank upon presentation of a savings book.

7. The bill of lading performs several functions simultaneously in accordance with the norms of § 3 ch. VIII KTM RF:

— confirms the acceptance of the cargo by the carrier (transfer and acceptance certificate);

— confirms the existence of a contractual relationship between the shipper and the carrier (maritime contract);

— confirms the corresponding property rights to the cargo transferred to the carrier (document of title).

Unlike other securities, a bill of lading can be issued in several copies (originals), and in each of them the number of available originals of the bill of lading is noted. After the cargo is released on the basis of the first original bill of lading presented, the remaining originals become invalid.

In accordance with Art. 144 of the Code of Labor Code of the Russian Federation, the bill of lading must include: 1) the name of the carrier and its location; 2) the name of the port of loading in accordance with the contract for the carriage of goods by sea and the date of acceptance of the goods by the carrier at the port of loading; 3) name of the sender and his location; 4) name of the port of unloading in accordance with the contract for the carriage of goods by sea; 5) name of the recipient, if specified by the sender; 6) the name of the cargo, the main marks necessary to identify the cargo, an indication, in appropriate cases, of the dangerous nature or special properties of the cargo, the number of pieces or items and the weight of the cargo or its quantity otherwise indicated. In this case, all data is indicated as it is provided by the sender; 7) external condition of the cargo and its packaging; 8) freight in the amount payable by the recipient, or other indication that freight must be paid by him; 9) time and place of issue of the bill of lading; 10) the number of originals of the bill of lading, if there are more than one; 11) signature of the carrier or a person acting on his behalf. By agreement of the parties, other data and clauses may be included in the bill of lading.

8. The legal regime of shares as securities is determined by the Federal Laws “On Joint Stock Companies”, “On the Securities Market” and other regulatory legal acts.

A share is an issue-grade security that secures the rights of its owner (shareholder) to receive part of the profit of the joint-stock company in the form of dividends, to participate in the management of the joint-stock company and to part of the property remaining after its liquidation. A share is a registered security. Only joint stock companies, both closed and open, have the right to issue shares. Shares can be classified on different grounds. For example, shares are divided into ordinary and preferred. A joint stock company places ordinary shares and has the right to place one or more types of preferred shares. The par value of the issued preferred shares should not exceed 25% of the authorized capital of the company.

Each ordinary share of the company provides the shareholder - its owner with the same amount of rights. Shareholders - owners of ordinary shares of the company can, in accordance with the law and the charter of the company, participate in the general meeting of shareholders with the right to vote on all issues within its competence, and also have the right to receive dividends, and in the event of liquidation of the company - the right to receive part of its property.

Shareholders - owners of preferred shares of the company do not have the right to vote at the general meeting of shareholders, unless otherwise provided by law (for example, when deciding on the reorganization or liquidation of the company).

The company's charter must determine the amount of dividend and (or) the value paid upon liquidation of the company (liquidation value) for preferred shares of each type. The dividend amount and liquidation value are determined in a fixed monetary amount or as a percentage of the par value of preferred shares. Owners of preferred shares for which the dividend amount is not determined have the right to receive dividends on the same basis as owners of ordinary shares.

The company's charter may provide for the conversion of preferred shares of a certain type into ordinary shares or preferred shares of other types at the request of the shareholders - their owners, or the conversion of all shares of this type within the period determined by the company's charter. In this case, the charter of the company at the time of making the decision that is the basis for the placement of convertible preferred shares must determine the procedure for their conversion, including the number, category (type) of shares into which they are converted, and other conditions of conversion.

9. Privatization securities have now lost their relevance. Thus, previously, among the privatization securities, it was possible to single out a privatization check, which was a government security for a designated purpose payable to bearer and was used as a means of payment for the acquisition of privatization objects (until July 1, 1994). The basis for the legal regulation of these relations was the Decree of the President of the Russian Federation of August 14, 1992 N 914 “On the implementation of the system of privatization checks in the Russian Federation.”

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Russian newspaper. 08/27/1992. N 191.

10. Certain articles of the Civil Code of the Russian Federation also indicate the types and characteristics of securities, both mentioned and not mentioned in the article in question. According to Art. Art. 912, 914 of the Civil Code of the Russian Federation, a double warehouse certificate, each of its two parts and a simple warehouse certificate are securities. A double warehouse receipt consists of two parts - a warehouse receipt and a pledge certificate (warrant), which can be separated from one another. The holder of warehouse and pledge certificates has the right to dispose of the goods stored in the warehouse in full. The holder of a warehouse certificate, separate from the pledge certificate, has the right to dispose of the goods, but cannot take it from the warehouse until the loan issued under the pledge certificate is repaid. The holder of the pledge certificate, other than the holder of the warehouse receipt, has the right to pledge the goods in the amount of the loan issued under the pledge certificate and interest on it. When pledging goods, a note about this is made on the warehouse receipt.

11. The list of securities given in this article is not exhaustive. Other types of securities are defined by federal laws.

Among the issue-grade securities named in 27.5.3 of the Law on the Securities Market is a Russian depositary receipt. This is a registered issue-grade security that has no par value, certifying ownership of a certain number of shares or bonds of a foreign issuer (represented securities) and securing the right of its owner to demand from the issuer of Russian depositary receipts to receive in exchange for a Russian depositary receipt the corresponding number of represented securities and provision of services related to the exercise by the owner of a Russian depositary receipt of the rights secured by the represented securities. If the issuer of the represented securities assumes obligations to the owners of Russian depositary receipts, the specified security also certifies the right of its owner to demand the proper fulfillment of these obligations.

12. The issuer's option is also defined in the Law on the Securities Market and is an issue-grade security that secures the right of its owner to purchase, within the period specified therein and (or) upon the occurrence of the circumstances specified therein, a certain number of shares of the issuer of such an option at a price determined in the issuer option. An issuer option is a registered security. The decision to place the issuer's options and their placement are made in accordance with the rules established by federal laws for the placement of securities convertible into shares. In this case, the price for placing shares in fulfillment of the requirements for the issuer's options is determined in accordance with the price determined in such an option.

13. The Federal Law “On Mortgage Securities” mentions a mortgage participation certificate, which is a registered security certifying its owner’s share in the right of common ownership of the mortgage coverage, the right to demand from the person who issued it proper trust management of the mortgage coverage, the right to receive funds funds received in fulfillment of obligations, the requirements for which constitute mortgage coverage, as well as other rights provided for by this Federal Law.

14. The Federal Law “On Mortgage (Pledge of Real Estate)” refers to a mortgage as a security, which certifies the rights of the mortgagee under the obligation secured by the mortgage and under the mortgage agreement. A mortgage may certify the rights of the mortgagee under the mortgage by force of law and under the obligation secured by this mortgage, unless otherwise established by this Federal Law.

A mortgage is a registered security certifying the following rights of its legal owner:

- the right to receive performance under a monetary obligation secured by a mortgage, without providing other evidence of the existence of this obligation;

- right of pledge on property encumbered with a mortgage.

Drawing up and issuing a mortgage is not allowed if:

1) the subject of the mortgage is:

— enterprise as a property complex;

— the right to lease the property listed in this subclause;

2) a mortgage secures a monetary obligation, the amount of debt for which is not determined at the time of concluding the agreement and which does not contain conditions allowing this amount to be determined at the appropriate time.

15. The Federal Law “On Investment Funds” refers to investment shares as securities. An investment unit is a registered security that certifies its owner’s share in the ownership of the property that makes up the mutual investment fund, the right to demand from the management company proper trust management of the mutual investment fund, the right to receive monetary compensation upon termination of the trust management agreement of the mutual investment fund with all owners investment units of this mutual investment fund (termination of the mutual investment fund).

An investment share of an open-end mutual investment fund also certifies the right of the owner of this share to demand from the management company the redemption of the investment share and payment in connection with this of monetary compensation commensurate with his share in the right of common ownership of the property constituting this mutual investment fund on any working day .

An investment share of an interval mutual investment fund also certifies the right of the owner of this share to demand from the management company the redemption of the investment share and payment in connection with this of monetary compensation commensurate with his share in the right of common ownership of the property constituting this mutual investment fund, at least once per year for the period determined by the rules of trust management of this mutual investment fund.

An investment share of a closed-end mutual investment fund also certifies the right of the owner of this share to demand from the management company the redemption of the investment share and payment in connection with this of monetary compensation commensurate with his share in the right of common ownership of the property constituting this mutual investment fund, in cases provided for The Law on Investment Funds, the right to participate in the general meeting of owners of investment shares and, if the rules of trust management of this mutual investment fund provide for the payment of income from the trust management of the property constituting this mutual investment fund, the right to receive such income.

16. It is necessary to distinguish from securities documents that confirm the rights to a security (extracts from the register of shareholders, etc.). So, according to Art. 16 of the Law on the Securities Market, a certificate is issued to its owner for each issue-grade bearer security. At the owner's request, one certificate may be issued for two or more issue-grade bearer securities of the same issue purchased by him. The certificate of issue-grade bearer securities must contain the details provided for by this Federal Law. Requirements for forms of certificates of issue-grade bearer securities, with the exception of forms of certificates of issue-grade bearer securities with mandatory centralized storage, are established by regulatory legal acts of the Russian Federation.

TYPES OF SECURITIES.

According to the method of designating an authorized person: registered, order, bearer.

A registered security is characterized by the fact that the right certified by the security can be exercised by the person designated in it, or by the person to whom this security has reached in accordance with the rules on assignment (assignment of the right of claim).

An order security is characterized by the fact that the right certified by the security can be exercised by the person to whom this security reached by legal transfer from the original acquirer of this order security (by his order, warrant).

A bearer security is characterized by the fact that the right certified by the security can be exercised by any of its legal owners.

It must be said that these securities differ in their negotiability, since the transfer of subjective rights under these securities is carried out in different ways.

Bearer: the subjective right certified by this document is transferred to the acquirer by handing over the security to him by the alienator.

Order: the subjective right certified by this paper is transferred to the acquirer by handing him a security with an endorsement on it (endorsement). The most common ENDORSEMENT is an order - such an endorsement that indicates the person to whom this security is transferred or whose order must be executed.

The person who issued the order security and all persons who endorsed this security (made an endorsement) are jointly and severally liable to the legal owner of the security, which means that the more endorsements are made, the greater the trust in this security.

Registered: the subjective right certified by this document is transferred to the acquirer by delivering the security to him, but in compliance with the rules on assignment.

With the development of civil circulation, the need arose to fix the ownership of subjective civil rights to the relevant persons so that these rights could participate in civil circulation as simply as things.

Historically, the first form of such fixation (certification) was a security. But with the further development of government turnover, simpler forms of recording (certification of subjective civil rights) appeared - with the help of electronic devices or by simple entries in accounts maintained by specialized organizations (registrars).

Although this new form of fixation (certificate) differs in principle from a security, this new form has not ceased to be called a security, calling it uncertificated.

An uncertificated security is not a type of security, but an OTHER FORM OF FIXATION (certificate of subjective civil rights) that exists along with the security.

Therefore, at present there are two forms of recording: in PAPER or in a COMPUTER, entries in accounts.

Clause 1 of Article 149 of the Civil Code of the Russian Federation: Uncertificated securities are a special form of fixation of rights, which is carried out by a person who has received a license for this with the help of electronic devices or through a simple entry in accounts. And the rules established for securities apply to this special form of fixation of subjective civil rights, unless otherwise follows from this special form of fixation of subjective civil rights.

Features of the non-documentary form of recording subjective civil rights: subjective right is not embodied in paper (document), which participates in civil circulation along with subjective law, but subjective right is embodied in accounts or in electronic equipment.

What are the advantages of book-entry securities? There is no need for mass production of the relevant document.

In addition, the document can be lost (burnt, lost), and non-documentary recording allows you to secure the whole matter.

Disadvantages of undocumented? A specialized registrar organization is needed, and the employees of this organization, in principle, objectively have the opportunity to abuse. Also, it is possible to fix only nominal and order subjective civil rights. It is impossible to fix bearer uncertificated securities.

That. Although an uncertificated security is not a type of security, but an independent means of fixing subjective civil rights, the legislator still uses the term uncertificated SECURITY.

That. A security is recognized as a certificate of subjective civil rights, the exercise and transfer of which becomes possible only in a strictly defined way. A documentary security occurs when the certification of a subjective right is carried out through a document, the presentation or transfer of which is necessary for the implementation or transfer of the subjective civil right embodied in it. An uncertificated security occurs when the certification of a subjective right is carried out using electronic equipment or simple entries in accounts by a person who has a license provided for by law, and the transfer and exercise of these civil rights is possible only by contacting this person and in compliance with the rules for accounting for these subjective civil rights right

ISSUING SECURITIES.

Federal Law "On the Securities Market" dated April 22, 1996. The rules in this law apply only to equity securities.

They have all the characteristics of securities and can be either documentary or non-documentary. But along with this, they are characterized by one more property: the mass (serial) nature of production. The reason for the appearance of such securities was the need to reduce costs associated with the issue and circulation of securities.

Issue-grade securities include SHARES and BONDS.

Documentary security(documentary security) – a document drawn up on paper, certifying, in compliance with the established form and mandatory details, property rights, the exercise and transfer of which are possible only upon presentation. Classic documentary:

• to bearer;

One security of a documentary form of issue can be certified by only one certificate. One certificate can certify one, several or all securities with one state registration number.

A certificated security may be in the hands of its owner (in which case, ownership of it passes to the new owner along with its transfer) or transferred by him for safekeeping (in this case, ownership of it passes to the new owner at the time of transfer across securities accounts in the depository).

The scope of rights secured by a documentary security is indicated in the decision on their issue and in the text of the certificate. In case of discrepancies between the text of the decision on the issue of securities and the data given in the certificate of the issue security, the owner may demand the exercise of the rights secured by this security to the extent established by the certificate.

The issuer of a certificated security fulfills its obligations under it in favor of the person who presents the security certificate. When a certificated security is in the depositary, the issuer's obligations are fulfilled in favor of the person whose name will be indicated by the depository to the issuer.

Until the 2nd half of the 20th century. A certificated security was the only form of security. With the development of modern computer and accounting technologies, equity securities began to be issued and recorded through accounting entries in a register system or in depositories.

When issuing registered state and municipal securities in documentary form with mandatory centralized storage (documentary security with mandatory centralized storage), the name of the depositary is indicated in the global certificate.

Objects of civil rights are objectified material and intangible goods, in relation to (regarding) which civil rights and obligations arise, civil legal relations are formed and operate.

Among the objects of civil rights, securities stand out, because they are widely used in developed economies and are the main way of recording and verifying certain property rights of its holder or owner.

A security is a document that meets the requirements established by law and certifies obligations and other rights, the exercise or transfer of which is possible only upon presentation.

However, it should be noted that according to the previously effective Civil Code of the Russian Federation, securities certified property rights, while according to the new norm, a security can certify obligations and other rights. Thus, the list of rights has been expanded. Obviously, “other rights” include not only property, but also non-property rights (for example, the right to information, etc.).

A security, according to the Civil Code of the Russian Federation, is a movable thing (a document on paper) containing the right of obligation, since a security always certifies a known right of claim. The document and the right are inseparable in a security. The loss of a paper is tantamount to the loss of the right of obligation merged with it.

To recognize a document as a security, it must meet certain special criteria regarding details and form. Failure to comply with these requirements entails the nullity of the security.

Thus, in order to be recognized as a security - an object of civil rights, a special thing, a document must have at least two characteristics.

The first, essential feature: a security contains (certifies) a property right of obligation, which is realized by presenting the security. This sign is expressed as follows:

a) compliance with the necessary details of securities (in other words, literality, which means the ability to demand execution only of what is directly indicated in the security);

b) the ability to accurately identify the person who has the right to demand execution of the security (legitimacy, i.e. determine the authorized person);

c) the need for its presentation (i.e. presentation to the obligated person). Only in this case is the unhindered implementation of the right expressed in the document possible;

d) the presumption of good faith in the ownership of a security by the person presenting it (i.e., the person presenting the security is considered to be in good faith and is freed from the question “where did you get this from?”).

In this case, the security must be directly enshrined in the law.

The Civil Code of the Russian Federation classifies the following as securities: a share (a security whose owner, a shareholder, receives the right to receive part of the profit of the joint-stock company in the form of dividends, to participate in the management of the joint-stock company), a bill of exchange (a security representing a simple abstract unconditional obligation to pay to the legal holder (to the bill holder) within the period specified on it, the amount indicated by the debtor), mortgage (enshrined in the Federal Law “On Mortgage (Pledge of Real Estate)”, investment share of a mutual investment fund, bill of lading (used in maritime transportation of goods, means that the holder of the bill of lading has the right to dispose of the cargo while it is on the ship during transportation), a bond (a security that secures the right of its owner to receive from the issuer of the bond within the period specified in it its nominal value or other property equivalent), a check (a security containing an unconditional order of the drawer bank to make payment of the amount specified in it to the holder of the check).
The Civil Code of the Russian Federation clearly divides all securities into two large groups - documentary securities and uncertificated securities.

Documentary securities are such 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.

A book-entry security means obligations and other rights that are enshrined in the decision on the issue or other act of the person who issued the securities in accordance with the requirements of the law, and the exercise and transfer of which are possible only in compliance with special rules for accounting for these rights.

However, not all securities can be uncertificated. For example, a bill, check, mortgage, bill of lading must be in documentary form.

According to the method of determining the subject, documentary securities are divided into the following types:

- a bearer security, for which its owner is recognized as the person authorized to demand execution on it;

— a registered security, for which the right to demand performance on it is recognized for the person specified (or named) in it;

- an order security for which the person authorized to demand execution on it is recognized as its owner if the security is issued in his name or transferred to him from the original owner through a continuous series of endorsements (endorsements).

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SHARE AS THE MAIN TYPE OF UNDOCUMENTARY SECURITY

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The Civil Code of the Russian Federation stipulates in chapter seven that in our state there are both documentary and uncertificated securities. The first have their direct expression on a sheet of paper, with certain details, text, sequence of presentation, while the second do not have all of the above and contain only an expressed property right or a method of fixing rights; some scientists compare them with non-cash payments.

In other words, a book-entry security is a right that is generated and enshrined in a special document (decision on issue or other act) by an authorized person. It is important to note that this person bears a significant responsibility, and he is obliged to do everything in accordance with the legislation of the Russian Federation, otherwise other persons will not be able to take advantage of the right they are entitled to.

Since January 4, 2003, the share in Russia exists exclusively as a book-entry security. At the same time, a share is the most frequently used security in business circulation, which exists to form the authorized capital, organize the organizational structure of a new joint-stock company, as well as to replenish existing capital.

In accordance with Art. 2 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”: a share is an issue-grade security that secures the rights of its owner (shareholder) to receive part of the profit of the joint-stock company in the form of dividends, to participate in the management of the joint-stock company and to a part property remaining after its liquidation. Therefore, the shareholder has the right:

To receive profits, which are called “dividends” (this is the most important component of shares; profits are distributed among shareholders in proportion to their purchased shares);

To participate in the management of the affairs of the joint-stock company (a shareholder can vote at the general meeting of shareholders, having a number of votes equal to the size of his share);

Access to the documentation of the joint-stock company, including accounting;

For information related to the activities of this person (the company provides the shareholder with the following information: about his pre-emptive right to purchase shares of an additional issue; about the convening and holding of a general meeting of shareholders; about decisions adopted by the general meeting of shareholders and voting results; about the upcoming acquisition of shares; on the possibility of repurchasing shares);

For the preferential acquisition of additionally issued shares or securities, which will be exchanged for shares before non-shareholders within a specified period of time;

For a certain part of the property if the joint-stock company is subject to liquidation.

Note that the more shares a shareholder has in an organization, the more additional rights he is granted. For example, such as: the right to demand an extraordinary meeting of shareholders, the right to nominate candidates to the board of directors, the right to get acquainted with various internal documents, etc.

It is important that now there are only registered shares, that is, this security must be registered in the name of a specific person.

Therefore, a shareholder is a person who invests his money in a certain business and then receives shares that bring him dividends.

Uncertificated securities in Russian civil law (Shevchenko G.N.)

A shareholder, by purchasing shares, does not become the owner of any property of the organization and the legal owner of all property of the joint-stock company is this organization itself.

In any joint stock company, in addition to ordinary shares, preferred shares are issued. Otherwise, they are also called guaranteed, preferential, priority. They cannot be more than 25% of the total authorized capital of the company. The difference between them is that the shareholder receives part of the profit not in the form of a dividend, which directly depends on the profit earned by the company, but receives income in a predetermined, fixed amount. In addition, the owner of a preferred share does not have the right to vote at the general meeting of the joint stock company, with the exception of issues on its reorganization and liquidation. But upon liquidation, he receives the property immediately after the creditors of the joint stock company.

Sometimes it happens that a share of very large value, in order to be sold to the acquirers, is divided into several smaller parts. This process is called splitting and the shares become fractional shares. Uncertificated shares are much more convenient for active economic turnover than their documentary predecessors. Modern developed communication computer systems allow entities located in any city where there is a branch of the registrar maintaining the register of securities of the relevant issuer to make transactions with shares. Just 40 years ago this would have been completely impossible.

The person who registers the owners of shares in the register of owners of registered securities is called a registrar, who is necessarily a legal entity and does not have the right to enter into transactions with securities of issuers whose registers he maintains. It is also not allowed to combine register maintenance activities with other types of professional activities in the securities market.

In order to ensure economic security for owners of uncertificated securities, increase the protection of their rights as investors, and build a unified accounting system that will eventually make it possible to dematerialize all equity securities, depository activities are regulated in the Russian Federation. The accounting system in the securities market integrates two mutually controlling “parallel operating” accounting institutions: organizations engaged in depository activities and organizations engaged in maintaining a register of securities owners. The accounting system in the securities market performs the functions of confirming rights to securities, as well as confirming the rights secured by securities in order to transfer these rights and exercise them.

Thus, the share at this stage of development of our society is the most widely used uncertificated security. It is now clear that its undocumented nature is not a disadvantage, since the appropriate infrastructure is in place in the Russian Federation for the exercise and transfer of rights secured by shares.

BIBLIOGRAPHICAL LIST:

1. Goncharov A.I. A share is like an uncertificated security. // Bulletin of Volgograd State University. Episode 5: Jurisprudence. - 2014. - No. 2. - P. 80-85

2. Usmanov I.P. Book-entry security - is it a fiction? // Society and law. - 2009.- No. 2. -S. 73-76

3.Karpenko E.V. Uncertificated securities: changes in legislation. // Education and law. - 2014 .- No. 5-6 (57-58). — pp. 189-194

4. Berdyugina E.O. Shares as uncertificated securities. // Modern technologies and scientific and technical progress. - 2008. T. 1. - No. 1. - P. 045.

5. Civil Code of the Russian Federation (part one) dated November 30, 1994 No. 51-FZ (as amended on May 5, 2014) // SPS “Consultant Plus”

6.FZ dated 04/22/1996 No. 39-FZ “On the securities market” (as amended on 07/21/2014) // SPS “Consultant Plus”

Aitova M.A.1Shanazarova E.V.1

1Vladimir State University

All subjects → Civil law. a common part

An uncertificated security is not a document; all its details and rights certified by it are recorded in electronic or digital form. Such securities exist in the form of entries in a personal account, which is opened to its owner in a special Register of Securities Owners, or in a special account in a depository (depository account). Such recording (electronic digital) can only be carried out by a commercial organization on the basis of a special license.

2. Uncertificated securities

An organization that carries out non-documentary recording of rights issues a document to the copyright holder indicating the secured right.

Currently, the book-entry form is the main one for the placement and turnover of shares. A register of shareholders is maintained, an account is opened for each shareholder, to which the total number of shares purchased by him is credited. At the same time, the shareholders themselves, upon their requirements, are issued share certificates or other documents confirming their participation in the joint-stock company.

Book-entry securities are a generally accepted legal fiction, since in objective reality the property rights of the owners of such securities are not secured on any external material medium. That is why uncertificated securities cannot be physically lost, they cannot be actually handed over or physically withdrawn. In case of foreclosure on such papers, the personal account itself is subject to procedural seizure. However, most securities can be issued only in documentary form. Only shares are placed in book-entry form.

The security must indicate property rights that can only be exercised by its legal owner, and also contain an indication of the type and scope of the rights being certified.

The property rights enshrined in a security can be exercised or transferred only upon presentation of the security itself. Thus, the right certified by a security and the security itself are inextricably linked.

In cases provided for by law, in order to exercise and transfer the rights certified by a security, it is sufficient to provide evidence of the registration of these securities in a special register.

This rule applies to uncertificated shares. In this case, when a transaction is completed, the right enshrined in such a document passes to the new copyright holder from the moment a credit entry is made to the personal account or custody account. This method of transfer is called transfer.

Public authenticity makes it possible to distinguish a security from other legal documents that can also secure property rights: from receipts for a loan, from other promissory notes, from written agreements, from transfer deeds, from invoices, etc.

The sign of public reliability means that the copyright holder has the right to demand execution of the security, relying only on the observed form of the paper and details. No other evidence of his existing right is required. In this case, the debtor is obliged to execute the security only after making sure that it corresponds to the form and details and is not counterfeit or counterfeit. Hence the rule: a debtor who objects to the claim of the copyright holder can challenge it only by referring to non-compliance with the form and details, or to the falsity of the paper itself; he cannot refer to other circumstances.

The essence, characteristics and classification of securities - documents certifying property rights, the exercise or transfer of which is possible only upon presentation. Documentary and uncertificated securities in modern civil law.

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Documentary and uncertificated securities as objects of civil rights

According to the Civil Code of the Russian Federation, securities are documents certifying the property rights of citizens. These documents must be drawn up in accordance with the established form and provided with mandatory details. The exercise and transfer of rights certified by such documents is possible only upon their direct presentation. But lawyers do not agree with this definition of all securities, because it is optimal only for documentary securities, since according to the definition, the essence of a security is its documentary form. What are documentary securities and how do they differ from uncertificated securities?

Documentary securities are securities in physical form, that is, those written on paper. Such securities usually have two types: bearer, when the owner of the security is the person who currently owns it, and registered, that is, when the owner’s data is entered in a special register.

Securities without a fixed owner (bearer) are highly negotiable and give the owner certain rights, such as the right of payment in the presence of a debt security. They can be freely transferred to another person. Sometimes the transfer may be accompanied by an endorsement. The authorities of many countries have a negative attitude towards bearer securities, as they make it difficult to control the circulation of such securities and can be used to evade taxes.

Registered securities are distinguished by the fact that they are equipped with a certificate with the name and details of the owner, which are also entered into a special register. The transfer of registered securities to another person leads to changes in the register.

Book-entry securities differ from documentary securities in that they do not have a physical form. That is, such a security does not seem to exist, but only an entry in the register of property rights exists. We can say that uncertificated securities have an intangible form of existence. Nevertheless, this type of securities has become the most reliable and widespread in Russia. The circulation of uncertificated securities is regulated by separate articles of the Civil Code, as well as by the law of the Russian Federation “On the securities market”.

In fact, both documentary and non-documentary forms of securities are two ways of fixing and exercising the rights given by the presence of a given security. During the issue process, securities can be issued in any form, but the form must be uniform for a given issue. Evidence of the entry into a documentary security is its certificate. Ownership of a book-entry security is certified by an entry in a special register.

28. Representation: concept, types

Carrying out economic activities, organizations enter into various legal relationships with their counterparties: under supply contracts, transportation contracts, capital construction contracts, etc.

As a rule, organizations and citizens carry out legal actions and transactions themselves, without seeking help from third parties. However, actions aimed at achieving certain legal consequences, for various reasons, cannot always be carried out by the bodies of a legal entity or by a citizen directly.

Inability to participate directly in civil circulation it can be factual or legal. TO actual include illness of the transaction participant, his employment, being on a business trip, etc. legal- prohibition of certain participants in a transaction from performing their or other legal actions directly. For example, for minors under the age of 14, transactions on their behalf can be made by their parents, adoptive parents or guardians (Article 28 Part 1 of the Civil Code of the Russian Federation). In such cases, a relationship of representation may arise.

Representation- is a transaction made by one person (representative) on behalf of another person (represented) by virtue of authority based on a power of attorney, law or administrative act that directly creates, changes or terminates the civil rights and obligations of the represented (Article 182, Part 1 Civil Code of the Russian Federation).

The representative office is divided into:

§ voluntary;

§ mandatory.

Voluntary representation

Voluntary representation arises by virtue of an agreement between the represented and the representative. The scope of the representative’s powers is established by the represented and can be expressed in the form of a special document (power of attorney) or letter (credential letter).

Mandatory representation

Mandatory representation arises:

§ on the basis of acts of authorized state bodies and local government bodies;

§ on the basis of law.

Representation by law is based on the rules of law that determine the terms of reference of the representative. For example, Art. 28 Part 1 of the Civil Code of the Russian Federation directly states that parents, adoptive parents or guardians are the legal representatives of children under 14 years of age and have the right to carry out various transactions and legal actions on their behalf.

Representation based on an administrative act is similar to representation under the law. The terms of reference of a representative are established by administrative acts issued by organizations and enterprises. Both in case of representation based on law and representation by virtue of an administrative act, the powers of the representative are exercised only after the publication of the relevant act.

Commercial representation

In some cases, the authority of the representative is clear from the environment in which he acts. Thus, there is no doubt about the representation of sellers, store cashiers, receptionists in the storage room, etc., who, due to the conditions of their official activities or the circumstances, act as such. In retail trade, the powers of representatives are determined by the form of division and cooperation of labor in the store. For example, if there is only one employee in a store, then he, naturally, has the authority to sell goods and receive payment for them. If in addition to the seller there is a cashier, then the powers of the seller are limited to releasing goods, and the cashier's powers are limited to accepting payment.

29. Power of attorney: concept, types, validity periods, grounds for cancellation. Retrust.

Power of attorney a written authority issued by one person to another for representation before third parties is recognized (Article 185, Part 1 of the Civil Code of the Russian Federation).

The basis for issuing a power of attorney are contracts that define the internal relations between the representative and the represented (employment contract, agency agreement, etc.). From a legal point of view, a power of attorney is a one-sided transaction, since in order to issue it, it is sufficient to express the will of one person for another person to carry out a transaction or other legal actions on his behalf.

From Art. 185 part 1 of the Civil Code of the Russian Federation it follows that the power of attorney must be drawn up in simple writing. A number of transactions require mandatory notarization of a power of attorney.

In particular, a power of attorney must be notarized to carry out transactions requiring a notarial form, and to perform actions in relation to other states, cooperatives and public organizations, with the exception of cases provided for by the Civil Code of the Russian Federation, and other cases when special rules allow a different form of power of attorney ( Art. 185 Part 1 of the Civil Code of the Russian Federation). The law establishes an exhaustive list of cases of certification of powers of attorney to perform actions on behalf of citizens not only by a notary body, but also by the organization in which the principal works or studies, the management of the house in which he is registered, or the administration of the inpatient medical institution where he is being treated.

A power of attorney can be issued either directly to a citizen or to a legal entity. However, the powers of a legal entity specified in the power of attorney must be limited to the scope of its special legal capacity. Otherwise, the power of attorney is invalid (Article 168, 173, Part 1 of the Civil Code of the Russian Federation).

A power of attorney on behalf of a state or other organization is not subject to notarization and is issued signed by the head or persons authorized to do so by the charter (regulations), with a seal attached.

The law establishes a special procedure for issuing a power of attorney to receive or issue money and other property assets by state, cooperative or public organizations.

The peculiarity of issuing a power of attorney to receive inventory items is that the list of assets to be received, provided on the back of the power of attorney, is filled out in cases where the vacation document does not contain the names and the number of assets to be received. Otherwise, the list of values ​​on the back of the power of attorney is crossed out.

The person who has received the power of attorney is obliged, no later than the next day after each receipt of valuables, regardless of whether the inventory items were received under the power of attorney in full or in parts, to submit to the organization’s accounting department or centralized accounting department documents on the execution of orders for delivery to the warehouse or to the relevant financially responsible person person received material assets. Unused powers of attorney must be returned to the enterprise (organization, institution) that issued them the next day after the expiration of the power of attorney. At the end of the year, such unused powers of attorney are destroyed and a report is drawn up.

Persons who have not reported on the use of expired powers of attorney will not be issued new powers of attorney.

Depending on the content of the powers, there are three types of power of attorney:

§ one-time;

§ special;

§ general (general).

One-time power of attorney

A one-time power of attorney is issued to perform one specific action (receiving goods from a warehouse, selling a house, etc.).

Special power of attorney

A special power of attorney gives the representative the right to perform similar actions for a certain period of time.

Such, for example, is a power of attorney issued to the forwarder of an enterprise to receive goods that have arrived at the railway station to the address of the enterprise; to the cashier to receive money and monetary documents from the bank, etc.

General power of attorney

A general power of attorney gives the representative the opportunity to carry out a variety of property management transactions.

As a special type, we can distinguish a power of attorney issued by way of subrogation. A person to whom a power of attorney has been issued may entrust it to another person if he is authorized to do so by the power of attorney or is forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney. Delegation is the transfer of authority by a representative to another person.

A power of attorney is an urgent document(Article 186 Part 1 of the Civil Code of the Russian Federation).

General provisions on uncertificated securities

Its validity period may be specified by the person represented at his discretion, but it should not be issued for a period of more than three years. In the absence of an indication of the validity period, the power of attorney remains valid for one year from the date of preparation.

The date of execution of the power of attorney has important legal significance. If a specific indication in the power of attorney of its validity period is an essential condition of validity only for powers of attorney issued to officials to receive inventory items, then the date of drawing up the power of attorney is of primary importance in all cases, because otherwise it is not possible to determine its validity period. If there is no date, the power of attorney is invalid (Article 186, Part 1 of the Civil Code of the Russian Federation).

As a rule, the person to whom the power of attorney is issued must personally perform the actions for which he is authorized. Along with this law, in some cases the transfer of powers - reassignment - is allowed. It is permissible when the representative is authorized to do so by a power of attorney or is forced to do so by force of circumstances to protect the interests of the represented person (Article 187, Part 1 of the Civil Code of the Russian Federation).

A power of attorney issued by way of delegation must be notarized. But for this it is necessary to provide a basic power of attorney, which stipulates the right of substitution. The scope of powers and the validity period of a power of attorney issued by way of subrogation cannot exceed the powers and duration specified in the main power of attorney.

A representative who has transferred his powers to another person is obliged to notify the person represented and provide him with the necessary information about the specified person. Otherwise, he is responsible for the actions of the person to whom he delegated authority as for his own.