STATE COMMITTEE OF THE RUSSIAN FEDERATION FOR HIGHER EDUCATION

TYUMEN STATE UNIVERSITY

EXTRAMURAL

FACULTY OF LAW

SECURITIES AS OBJECTS OF CIVIL RIGHTS

course work

2nd year students 059 gr.

correspondence department

Zueva I.V.

scientific adviser:

R.N. Mirgazizova

TYUMEN - 1997

Work plan

Introduction 3 - 5

Concept and types of securities 6 - 16

1. Nature and characteristics of securities 6 - 11

a) Duality of securities 6 - 8

b) Features of securities 8 - 11

2. Classification of securities 12 - 16

Sources. Securities circulation 17 - 23

1.Turnover of securities 17 - 19

2. Sources of legal regulation

issues of issue and circulation of securities 20 - 23

Conclusion 24 - 25

List of used literature 26 - 27

Introduction

The legislation regulating the securities market is far from perfect. Nevertheless, the market itself exists, it functions and develops; it influences the state of affairs in the state and promotes the development of entrepreneurship.

Previously, before the advent of market relations, in a fully nationalized economy, the turnover of securities was very small and was represented by bonds (targeted and non-targeted), bearer savings books, winning lottery tickets, and letters of credit from state labor savings banks. Payment checks were used between legal entities. With the development of market relations, the number of types of securities increased and the stock market began to form.

The securities market began to operate relatively seriously in Russia in 1991, and active lawmaking in this area began at the same time. By 1993, there were already about 100 regulations in force in the Russian Federation regulating this area of ​​activity.

In general, the current legislation most fully regulates such issues as the admission of certain persons to the securities market, the procedure and conditions for licensing professional participants. Recently, more and more regulations have appeared devoted to the protection of the rights and interests of investors, as well as strengthening state control in this area.

An important milestone in the development of securities legislation was the adoption on November 30, 1994 of Part I of the Civil Code of the Russian Federation, which was developed on the basis of practical experience in the legal regulation of market relations.

The Civil Code of the Russian Federation includes clearly defined categories of legal institutions regulating property rights, the exercise or transfer of which is possible upon presentation of a security.

Compared to the previously existing regulation of the securities institution (in the Fundamentals of Civil Legislation of the USSR and the Republics of 1991), the new Civil Code of the Russian Federation contains a number of significant innovations. These include: 1) a new definition of the concept of a security in Art. 142 of the Civil Code of the Russian Federation (introduction of a mandatory form and details into it; the need to present a security for its transfer; sufficiency of proof of registration of securities in a register (regular or computerized) for the exercise and transfer of rights certified by a security); 2) as a criterion for dividing securities into bearer, order and registered, the legislator chose the principle of combining two methods - designation and legitimation of an authorized person - Art. 145 Civil Code of the Russian Federation; 3) procedure for restoration of a security - Art. 148 Civil Code of the Russian Federation; 4) allocation of the institution of uncertificated securities - Art. 149 of the Civil Code of the Russian Federation.

Securities are a necessary attribute of any market economy. Previously, in domestic civil circulation there was only a minimal amount of securities, mainly issued (issued) by the state: bonds, bearer savings books and letters of credit, winning lottery tickets, and in settlements between legal entities a settlement check could be used.

With the transition to a market economy, the turnover of securities increased sharply, and their market began to form. True, it concerned only the so-called “stock” or “investment” securities - shares and bonds, and most importantly, it received extremely unsatisfactory legal regulation, the shortcomings of which formed the basis for many abuses.

The most important tasks of the securities market are to ensure flexible intersectoral redistribution of investment resources, attract investment to Russian enterprises, create conditions for stimulating savings and their subsequent investment. To solve these problems, it was necessary to create a reliable legal framework.

The Federal Law “On the Securities Market” is the first Russian law on securities.

One of the main tasks that the Law was supposed to solve was maximum protection of the rights of investors and ensuring law and order in the market, in which its participants clearly comply with the requirements of the law.

One of the principles enshrined in the Law is the combination of vertical government regulation with self-regulation. Self-regulatory organizations receive a block of powers and legal status, and a unified state policy in the stock market is ensured by concentrating powers in this area in one body - the Federal Commission for the Securities Market, while a number of functions are retained by the Bank of Russia. The commission reports directly to the President of the Russian Federation, and this fact indicates the importance attached to the stock market in the economy.

The law begins to establish liability for the use of proprietary information, and also highlights information on the securities market as a system of relations.

Thus, the Law brings order and stability to the market, without which its intensive and high-quality development is almost impossible.

The securities market is an area of ​​relationship that has been rapidly developing over the past few years. This applies not only to the emergence of new financial instruments, new segments of the market infrastructure, but also to numerous attempts to regulate them legislatively.

Concept and types of securities

1. Nature and characteristics of securities

a) Duality of securities

The Civil Code, in comparison with the Civil Code of 1964, includes a new chapter on securities as objects of civil rights. In accordance with the general principles of the Civil Code, the seventh chapter contains provisions that characterize only issues common to all types of securities. The specifics of the issue and circulation of certain types of securities are regulated by special acts, the provisions of which specify and supplement the norms of the Civil Code.

Paragraph 1 of Article 142 of the Civil Code contains the classic definition of a security as a strictly formal document certifying property rights, the exercise or transfer of which is possible only upon presentation of this document. It follows that a security is, firstly, document, certifying a certain property right (including the right to demand payment of a certain amount of money, transfer of certain property); secondly, this document has strict form and required details, the absence of at least one of which (or its incorrect indication) makes the paper void (clause 2 of Article 144 of the Civil Code); thirdly, this document inextricably linked with the law embodied in it, for this right can be exercised or transferred to another person only through the appropriate use of this document.

Securities in the legal sense are valuable documents that are valuable not in themselves, like papers are material objects: by virtue of their natural properties, but by virtue of the right to some value contained in them.

Any security as a specific instrument of legal regulation can be considered in two aspects. Firstly, as a tool for formalizing any relationship, usually obligatory. (For the Russian securities market, the circulation of securities with proprietary legal content is not relevant.) The types of these rights can be very different.

Thus, one can always talk about rights certified by a security, or about rights “from” a security.

In addition, a security is property, the object of real rights and can be the object of various agreements. Thus, one can always talk about rights “to” a security, understanding by this term the right of ownership or other property right.

Any security is characterized by a close and inextricable connection between the rights “to” the security and the rights “from” this security. This, in particular, is manifested in the classic definition of a security, which establishes the possibility of exercising “the right from a security” only if the original document - the security - is presented.

Currently, in connection with the development of non-cash securities, we can talk about some modification of this definition.

However, the connection that establishes the possibility of exercising rights from a security depending on the ownership of rights to the security must exist for any form of issue. This is one of the characteristics of securities that makes it possible to distinguish this instrument from property rights arising from contracts.

From this point of view, many so-called surrogate securities, such as deeds of sale for shares, are precisely confirmation of any contractual relationship and do not acquire an independent meaning divorced from these relations, that is, any security certifies a property right, but not every property right is certified security.

b) Features of securities

When developing the provisions of the Law on equity securities and their forms, two concepts were taken into account, reflecting different approaches to the concept of a security. According to the Civil Code of the Russian Federation, a security is a document certifying a set of rights. Consequently, two types of rights arise - in rem (“to a security” as a thing, Article 128 of the Civil Code of the Russian Federation) and obligatory (“rights “from a security”) - a set of rights certified by a security (to income, to management, and so on ).

Securities. 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 presentation (Article 142 of the Civil Code). In other words, a paper (document) is recognized as valuable not because of its inherent natural properties, but because it confirms the rights of its owner to certain tangible or intangible benefits - things, money, actions of third parties, other securities. In this case, the exercise of the corresponding rights is possible, as a rule, only upon presentation of the security. The prevalence of securities in developed economic circulation is due to the fact that, having a certain value, they, along with money, serve as a convenient means of circulation and payment, act as a credit instrument and provide a simplified transfer of rights to various benefits.

They have a number of properties that distinguish them from other legal documents, which also confirm various subjective civil rights, in particular promissory notes, insurance policies, wills, etc.

Any security must be drawn up in a form strictly defined by law and contain all the necessary details. As a general rule, securities are written documents drawn up on special forms that have one or another degree of protection against forgery. Along with them, the so-called uncertificated securities. In accordance with Art. 149 of the Civil Code, in cases determined by law or in the manner established by it, a person who has received a special license can record the rights secured by a registered or order security, including in non-documentary form (using electronic computers, etc. ).

As for the details of securities, they are established by law in relation to each specific type of securities permitted for issue. Further, in any security the legal opportunity to which the legal owner of the security has the right to exercise must be precisely defined. This may be the right to receive a specific amount of money, income in the form of dividends or interest, certain property, etc. In this case, the types of rights that can be certified by securities are determined by law or in the manner established by it.

The most important feature of securities is the possibility of their transfer to other persons. Depending on the type of security, the methods of transferring them can be different - from the simplest to the most complicated. With the transfer of a security, all the rights certified by it are transferred to the new owner.

Securities are characterized by a sign of public reliability. Its essence lies in the fact that the law extremely limited the range of those grounds, based on which the debtor has the right to refuse to fulfill his obligation. In particular, a security executed in accordance with all the rules cannot be challenged by the debtor with reference to the absence of a basis for the occurrence of an obligation or to its invalidity. Only objections on formal grounds are allowed, in particular, a reference to missing the deadline for submitting a security for execution, or challenging a security with reference to its counterfeit or forgery. The owner of a security who discovers a forgery or falsification of a security has the right to present to the person who transferred the security a demand for proper fulfillment of the obligation certified by the security and for compensation for losses.

Finally, a characteristic feature of a security is that the exercise of the subjective civil right embodied in it is possible only upon presentation of the security. The loss of a security usually entails the impossibility of exercising the right secured by it. At the same time, a person who has lost a bearer security or an order security has the right to apply to the court to declare the lost security invalid and to restore rights under it.

Securities are divided into separate types according to various classification bases. Their most important division is the one based on the method of designating the authorized person and in accordance with which bearer, registered and order securities are distinguished. A bearer security is a security that does not indicate a specific person to whom execution should be performed. The person authorized to exercise the right expressed in such a security is any holder of the security who only must present it. This type of securities has increased legal capacity, since in order to transfer to another person the rights certified by a security, simply delivering it to that person is sufficient and no formalities are required. Examples of this kind of securities are government bonds, bearer bank savings books, privatization checks (vouchers), etc.

Registered security a document issued in the name of a specific person is recognized, who alone can exercise the right expressed in it. Such securities can usually be transferred to other persons, but this requires the completion of a number of formalities and specially complicated procedures, which makes this type of securities low-tradability. If the rights certified by a registered security are nevertheless transferred to other persons, this occurs in the manner established for the assignment of claims (assignment). In accordance with Art. 390 of the Civil Code, the person transferring the right under a registered security is liable for the invalidity of the corresponding requirement, but not for its failure to fulfill it. Registered securities may include shares, checks, savings certificates, etc.

Order security just like a registered one, it is issued to a specific person, who, however, can exercise the corresponding right not only independently, but also appoint another authorized person by his order (warrant, order). In other words, the owner of an order security is given the opportunity, unencumbered by special formalities, to transfer rights under the security to other persons. This is carried out by making an endorsement on this security, called an endorsement, which can be a blank (without indicating the person to whom the execution should be made) or an order (indicating the person to whom or on whose order the execution should be made). The number of endorsements is usually not limited, i.e., each new owner of a security can transfer it further, and therefore the negotiability of order securities is very high. The proper holder of an order security will be the person whose name appears last in the series of endorsements (and in the case of a blank endorsement, any holder of the paper).

Order securities, as a rule, are characterized by increased reliability. The endorser, i.e. the person who made the endorsement, is responsible not only for the validity of the right, but also for its implementation. In this case, liability to the owner of the order security is, as a rule, borne not only by the direct debtor, but also by all persons who made endorsements, unless they made a special clause: “without recourse to me,” which eliminates their liability. A typical example of an order security is a bill of exchange.

Taking into account the basis on which securities are issued, there are emission and non-equity securities . An issue-grade security is simultaneously characterized by the following features: a) secures a set of property and non-property rights that are subject to certification, assignment and unconditional implementation in compliance with the form and procedure established by the Law of the Russian Federation “On the Securities Market”; b) posted in releases; c) has equal volume and terms of exercise of rights within one issue, regardless of the time of acquisition of the security. Equity securities include shares, bonds, savings certificates, etc. Non-equity securities are issued in a “piece” order and assign an individual volume of rights to their owners. They are checks, bills of exchange, bills of lading, warehouse receipts, etc.

Depending on who is the issuer of the security, i.e. the person bearing on his own behalf obligations to the owners of the securities to exercise the rights assigned to them, the government securities and private securities . Debt obligations of the Russian Federation can be short-term (up to 1 year), medium-term (from 1 to 5 years) and long-term (from 5 to 30 years) in nature. They take the form of government loans, carried out through the issuance of securities, in particular government bonds, on behalf of the Government of the Russian Federation. Government securities can also be issued for circulation by national-state and administrative-territorial entities, which bear independent responsibility for them, unless they have been guaranteed by the Government of the Russian Federation.

Securities issued for circulation in accordance with the procedure established by law by private individuals are guaranteed only by the property of these individuals themselves.

According to the content of the rights embodied in them, securities are divided into monetary, commodity and securities that give the right to participation in the management of a joint stock company. Cash securities provide their holders with the right to receive a certain amount of money. Examples of such securities include checks, bills of exchange, certificates of deposit and savings, etc. Commodity securities embody rights to goods and services. These types of securities include, for example, target commodity bonds and housing certificates. Commodity securities are often referred to as documents of title, since by assigning such a security to another person, the owner disposes of the goods belonging to him. Securities that, among other things, give the right to participate in the management of a joint-stock company are voting shares issued by joint-stock companies.

Current legislation classifies as securities government bonds, bonds, bills of exchange, checks, deposit and savings certificates, bearer bank savings books, bills of lading, shares, privatization securities (Article 143 of the Civil Code). This list is not exhaustive, since the law, in accordance with the procedure established by it, may include other documents that meet the characteristics of a security as securities. Let us briefly consider the main types of securities.

Related information.

The essential characteristics of the category “security” determine 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 securities, with a history of more than a thousand years, were considered primarily as debt obligations.

Securities, in accordance with the norms of the Civil Code, can be objects of property rights, and, first of all, property rights. Covering 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 previously existing legislation gave a clear and unambiguous answer to this question. Currently, the civil legislation of the Republic of Kazakhstan also establishes a certain legal regime for securities, determined by the level of economic development of the republic.

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 paragraph (like paragraph 3 of Article 117 of the Civil Code) does not directly classify securities as 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 presentation.” From this definition follow the special characteristics of a security, which distinguish it from other legally significant documents and form the basis of the legal regulation of the circulation of securities as an object of civil rights. Such features of the security are the following:

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 the provision of strictly defined property (money, goods, other securities), and in some rare cases, the provision of other opportunities (for example, in the field of corporate governance). That is, it is the content of the security that gives this document socio-economic value;

a security (document) and the property right it certifies are inextricably linked to each other to such an extent that in order to exercise (including transfer) this right, presentation and transfer (or only presentation in case of incomplete execution) of the original security is necessary. Here it should always be borne in mind that a security certifies the right of its owner to demand performance under 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 a given legal relationship, since such a provision contradicts the very legal nature of the security.

In business transactions, 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, in accordance with which they were recognized as an object of law.

By 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 that is expressed in letters, numbers and other printed or handwritten symbols. In this case, 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.

Mandatory 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 contents of the document entails the invalidity of the security (clause 2 of Article 131 of the Civil Code).

The details of a security, as a rule, are its name, series, number, circulation period, indication of the entity obligated on the security, par value, amount of income (dividends) or remuneration (interest), place of execution on the security, and other conditions. And even in the case of a mass issue, securities of the same 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 corresponding powers of its owner. Based on the details unique 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 a bearer share) only if he presents this particular share, 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 belonging 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 individually determined things, and therefore irreplaceable.

Securities are a special type of thing. A security as a form, 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 the material good to which it certifies the right to receive. The separation of a document and the property right it certifies 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, 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 real rights, securities act as the subject of various civil transactions related to the transfer of ownership or ownership of them, that is, they have a sign of negotiability. As a result of this, relations between people regarding securities are formed, 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 financial and commodity-money circulation allows you to manage large sums of money and significant masses of goods, transferring them from one owner to another without moving banknotes and things that are the subject of disposal. Instead of money and material assets, documents are transferred that serve as a symbol of the rights expressed by them, traditionally called securities.

In accordance with the legislation of any state, there are many documents that variously confirm the civil rights of individuals and legal entities to certain material or spiritual objects, to perform or refuse to perform certain actions.

As we 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 also appeared, which, while also maintaining 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, this is what determines their properties and features.

Securities, by their natural qualities, do not represent any usefulness. Their true significance 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 good.

Therefore, recognition of a security as an object of ownership (or other right - for example, a pledge) essentially means recognition of ownership (or other right) to the item designated by the security. As Yu. G. Basin writes, “it follows from this:

Secondly, the negotiable quality of the security must be maximum and can be limited only by the need to protect the interests of those who legally acquire or possess the security.

Thirdly, the inextricability of the connection between the legal force of a security and the validity of the right expressed by it. The exercise of the right terminates the legal force of the security. The absence of a security eliminates the possibility of enforcement of the right.

Fourthly, it is unacceptable to prove that the right expressed by a security belongs to a given person by presenting a certified copy of the security, witness testimony, receipt and similar evidence. 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. Upon initial issuance of a security, its issuer assumes responsibility for the legality of the right expressed by the security, and all claims regarding defects in foundation can be addressed only to this issuer.

This further ensures confirmation of the legality that the security belongs to its holder and the legitimacy of his interests.

Sixth, the security must be issued in the prescribed form and have generally recognized (official) details, deviations from which are unacceptable - signature, date, verbal designation of the security, method of expressing the right that serves as the content of the security, etc. Deviation from the established details or making any, even stipulated, changes to a security, or violation of the form established for it, makes the security invalid (clause 2 of Article 131 of the Civil Code).”

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 offers the potential owner of the security to accept (purchase ownership) it as confirmation of a loan relationship or investment in an enterprise on other terms. If the second party accepts the security, the contract is considered concluded on the terms and conditions exhaustively listed in the text of the document. Any security is considered freely tradable after acceptance of the original of the relevant document from the issuer. From this moment on, the right of the owner of the security 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 arise. From this moment, the owner of the security acquires ownership of the document. This right, as G. Shershenevich rightly notes, “on a piece of paper provides the only opportunity to exercise the right contained in it.” Therefore, in the future, by transfer of ownership of a security we will understand the simultaneous transfer of the right expressed in it.

Securities as an object of property rights can be freely circulated on the market, subject to the legal regime of movable things. However, the circulation of securities is subject to specific rules for the transfer and exercise of ownership rights to 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). Depending on the type of security, this rule is specified.

In the case of bearer paper, the actual delivery 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 the execution of an endorsement (endorsement) on it in accordance with the requirements of the law.

The Civil Code does not provide for the transfer of a registered security, since it is issued only in the name of a specific person. However, the transfer of her certified property right is allowed, but in the order of assignment of a claim (Articles 339-347 of the Civil Code). Paragraph 2 of Article 132 of the Civil Code determines that “when the rights under a registered security are transferred 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 may not be understood accurately, and instead of the previous document, a truly different security may be issued - an order or bearer, a bond or a share or a bill of exchange, etc. In addition, in cases of issue of issue-grade securities, the cancellation of a security and the issuance of another in its place means that each time when transferring rights under a registered security, it will be necessary to go through the procedure of state registration of the issue, since only those issue-grade securities, the issue of which was registered with an exact indication of the quantity, numbers and series of the relevant documents. This formulation also has its own difficulties in the area 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 document to the obligated entity, whose name is indicated in the text of the security.

In the case of presentation of paper to bearer for execution, the obligated entity must immediately and fully provide performance. Unfortunately, the Civil Code does not regulate the issue of the possibility of refusal to execute a bearer security if the obligated entity discovers a forgery or forgery of a document or if it 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 appropriate.

When presenting an order security for execution, the debtor is also obliged to submit the execution immediately, but has the right to check, in addition to the authenticity of the document, also the continuity of a number of endorsements made on the original paper, and, if the last endorsement is registered, to verify the identity of the bearer. And in this situation, the Civil Code does not clearly establish the corresponding powers of the person obligated under the order paper.

When presenting a registered security for execution, the debtor has the right to check the authenticity of the document and verify 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 Registration of Transactions with Securities” provide for maintaining a register of holders of registered securities. In this case, it is required that the name of the person authorized under such a document be entered in the registration book (register) of the obligated entity. An entry in the register has an additional and mandatory legitimation value. When transferring rights under such documents in the register, a corresponding change is made in the entries. When exercising and transferring rights under such securities, it is necessary that the register information and the contents of the document indicate the same person as the authorized entity. However, these rules represent an exception to the rules regarding the legal nature of a security; "As noted above, such a legal regime, when property rights are confirmed simultaneously 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 for the interests of issuers and holders of securities, the legislator essentially put under doubt the feasibility of the existence of a legal institution of securities in regulating the equity securities market.

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 recognized as its owner and a subject authorized to demand execution under it, if the contents of this security indicate the legitimacy of the corresponding claim. This is where the principle of public credibility comes into play.

The rule on limiting objections follows from the above principle. This rule means that it is unacceptable to refuse to provide execution on a security, delay execution or perform improperly with reference to any facts that are not reflected in the text of the document. The obligated person to whom the security is presented for execution may refuse, for example, if the document is presented earlier than the execution period specified in it. Any departure from the contents of the document is contrary to the nature of securities. This situation is directly reflected in legislation. Clause 2 of Art. 133 of the Civil Code states that refusal to fulfill an obligation certified by a security is not allowed with reference to the absence of a basis for the occurrence of this obligation or to its invalidity. This, by the way, expresses the abstractness of the security;

4. “Legal relations involving securities are characterized by a specific distribution of risk.” This fact was noted by M. Agarkov in his “Teaching on Securities”. Indeed, loss, destruction, or serious damage to a security entails the risk of non-receipt of the performance due on it. The summons procedure for restoring rights to bearer securities is fraught with the danger of being unable to prove 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 on the restored document . If the debtor executed on the paper, but did not demand that the original document be handed over to him or did not put a cancellation note on it, he bears the risk that the paper will be presented to him again for execution. There are other aspects to this issue, but they, in our opinion, are the subject of independent study.

Subject to the stated rules, securities are circulated as a specific object of ownership. As such, securities can be the object of various civil 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 (manufacture or creation of a thing, processing of movable things, etc.) are not grounds for acquiring ownership rights to securities due to the legal nature of the latter as a form of transaction.

Conclusions.

In business transactions, 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, in accordance with 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 entity specified in its text the provision of strictly defined property for ownership; a security (document) and the property right certified by it are inextricably linked.

Types of securities

Securities play an important role in civil rights and social relations that arise between individuals and legal entities. Today, experts identify certain types of securities.

Modern securities form and regulate social relations in one or another state or public activity. Securities as objects of civil rights can be of the following types:

• bonds. This is a certain security that allows you to confirm the owner’s rights to receive certain financial opportunities.
• bills. This is a certain security that allows you to secure obligations for financial payments.
• checks. These are certain securities that contain the financial orders of the check holders.
• savings certificate (certificate of deposit). It is important to understand that a certificate is an official written certificate that allows you to confirm the investor’s right to receive funds after the expiration of the period established and specified in the certificate.
• bank savings book. This is an established security that allows you to determine the powers of the copyright holder, that is, the investor, to use, dispose of and replenish certain funds.
• bill of lading. This is an official document that allows you to determine the right to dispose of the cargo after the process of its transportation.
• stock. These are securities that secure the right of their owner or shareholder to receive profit in the form of cash - dividends.
• privatization papers. These are securities that determine the intended purpose of the payment order in the privatization process.

Securities as objects of civil law

Definition 1

Securities are certain monetary documents that allow you to certify the details and forms used, as well as property rights. In turn, property rights allow the transfer of rights from the copyright holder to another person. This definition is established by Article 142 of the Civil Code of the Russian Federation.

It is important to understand that securities have certain characteristics that are regulated by various articles of the Civil Code of the Russian Federation:

• Literality is a certain opportunity, expressed in the requirement to fulfill certain points indicated in the securities.
• Legitimation is certain subjects of law that carry certain legal instructions.
• Presentation is the process of presenting the original to an obligated person or official. The purpose of the presentation is to present and familiarize yourself with the proposed information contained in the securities.

Note 1

The object of modern civil law is official documents - securities. In order for the relevant documents to be recognized as such, they must be drawn up in a certain order, supported by a signature or seals, and also meet certain characteristics.

Quite often, securities may be characterized by abstractness, which may further establish certain legal obligations. This is exactly what is stated in Article 147 of the Civil Code of the Russian Federation. In addition, it is important to understand that modern securities must have some publicity and credibility.

Securities can be obtained by all citizens of the country in accordance with one reason or another, as well as on the basis of civil rights and freedoms. Securities are also regulated by articles of the main legal document - the Constitution of the Russian Federation.

Topic: Securities as objects of civil rights. Transfer of rights to securities

Type: Test | Size: 19.68K | Downloads: 47 | Added 09/08/11 at 15:55 | Rating: +3 | More Tests

University: VZFEI

Year and city: Penza 2010

Content:
Introduction. 3
1. Securities. Concept and properties. History of valuable
securities, the right to transfer rights under a security 4
2. Types of securities 8
a) promotion 8
b) bond 8
c) bill 9
d) check 10
d) savings (deposit) certificate 11
e) bank savings book to bearer 11
e) bill of lading 11
g) privatization securities 12
h) warehouse documents under a storage agreement 12
i) mortgage 13
Conclusion 15
References 16

Introduction.

The relevance of this work is explained by the increase in economic activity of states, banks, and even individual farms. What is needed is a convenient means of payment, credit, or collateral, which is what securities became. They have no material value, but include guaranteed rights to actual real values ​​- money, goods, services. Securities are convenient in economic circulation because they replace real goods with money and thereby create conditions for more efficient market financing.

The regulatory source that contains the bulk of the instructions regarding securities and the rights to transfer them to other persons is the Civil Code of the Russian Federation.

The purpose of the test is to describe securities as objects of civil rights, to consider the rights to transfer rights to securities.

1) Give the concept of a security;

2) Briefly describe the types of securities.

1. Securities are a special object of civil rights, which is a document that certifies, in compliance with the established form and mandatory details, property and other rights, the exercise or transfer of which is possible only upon presentation. Currently, securities are widely used in Russian business practice.

Securities arose in the early Middle Ages. Their appearance in property circulation, and then their rapid development, are objectively determined by the dynamics of the two main elements of a market economy - goods and money. With the growth of production volumes, it became increasingly difficult for commodity owners to keep goods “with them,” move them from place to place, and transfer them from hand to hand. Thus, the need arose for a document that would replace goods and reliably indicate that its owner has certain goods, their quantity, quality, storage location and other data. Gradually, money also ceased to satisfy the needs of a market economy. There was often not enough money. Being with their owner, they always represent a tempting and easy prey for thieves and other criminals. The need to find their substitutes—money surrogates, a document that would confirm the financial capabilities of its owner—became increasingly obvious.

In market relations and business activities, other documents are also used that also confirm various civil rights (wills, insurance policies, promissory notes, etc.), but at the same time do not relate to securities. To isolate specifically securities from the mass of legally significant documents, it is necessary to know the following properties inherent in them:

The quality of the security is endowed by the state. A prerequisite for documents not named in the Civil Code to be classified as securities is that their classification as such documents can be carried out by laws on securities or in the manner established by them;

Any security must be drawn up in a form strictly defined by law and have all the necessary details. Details are established by law in relation to each specific type of securities permitted for issue and circulation. The absence of mandatory details of a security or the non-compliance of a security with the form established for it entails its nullity;

Every security must precisely define the legal possibility to which the legal owner of the security has the right (receiving a dividend, a specific amount of money, some property, etc.).

The ability to transfer a security by its owner to other persons. Depending on the type of security, more complicated or simpler methods of such transfer are provided. With the transfer of a security, all rights certified by it are transferred in the aggregate. When transferring rights to another person, certified by a bearer security, it is sufficient to deliver the security to this person. The rights certified by a registered security are transferred in the manner prescribed for the assignment of claims (assignment). The person transferring the right under a security is liable for the invalidity of the corresponding requirement, but not for its execution. Rights under the order paper are transferred by making an endorsement on this paper - an endorsement.

Public reliability of securities. Its essence is that a security executed in accordance with all the rules cannot be challenged by the debtor with reference to the absence of a basis for the occurrence of an obligation or to the invalidity of this basis. The owner of a security who discovers its forgery or forgery has the right to present it to the person who transferred the security to him, demanding the proper fulfillment of the obligation certified by the security, or for compensation for losses.

The owner of a security only has the right to demand its execution (transfer of property, payment of money, performance of any actions) when the security itself is actually presented to the debtor in the original. The same rule is established for the transfer of rights under a security: it must be accompanied by the actual transfer of the security itself to the acquirer (Part 2, Clause 1, Article 142 of the Civil Code). The loss of a security, as a rule, entails the impossibility of exercising the right vested in it. Restoration of the right to lost bearer securities and order securities is carried out by the court in the manner prescribed by procedural legislation;

The implementation of the subjective civil right embodied in a security is possible only upon presentation of the original of the security.

The law establishes the circle of persons who may own the rights certified in the security.

Securities can come from various participants in civil law relations. Depending on who is the issuer of the securities, the following differ:

State

Municipal securities

Private securities

An issuer is a legal entity or executive authorities or local governments that bear, on their own behalf, obligations to the owners of securities to exercise the rights assigned to them.

Recently, in cases determined by law or in the manner established by it, book-entry securities have begun to be used - fixation of rights secured by registered or order securities using computer means and other similar methods. Persons who have received a special license have this right. At the request of the owner of the right, they are obliged to issue him a document indicating the secured right.

2. Types of securities.

The most widespread type of securities in Russia is shares, the issue of which is carried out by only one form of legal entity: joint-stock companies. All shares have a common origin - the authorized capital of the joint-stock company, which is divided into a certain number of shares certifying the obligatory rights of the company's participants (shareholders) in relation to the company. Any share secures the rights of its owner (shareholder) to receive part of the profit of the joint-stock company in the form of dividends, participate in the management of the joint-stock company and to part of its property remaining after its liquidation.

Shares are divided into ordinary and preferred; the scope of the shareholder’s powers depends on this characteristic. An ordinary share confirms the right of its owner to participate in general meetings of shareholders with the right to vote on all issues, the right to receive dividends and other rights.

The par value of all ordinary shares of the company must be the same.

A preferred share, as a rule, does not give the right to vote at a general meeting, but this right can be offered to the owner of the share if it is provided for in the charter of the joint-stock company or in the law.

According to the Law on Joint Stock Companies, all shareholders who own preferred shares participate in the general meeting with the right to vote when deciding on the reorganization and liquidation of the company.

b) The bond is the next most common security in circulation after the share. A bond is a security that certifies the right of its holder to receive from the person who issued the bond the nominal value of the bond or other property equivalent within the period specified by the bond.

Bonds also differ in their legal content. Legislation establishes various conditions for issuing bonds. Thus, a joint stock company, unless otherwise provided by its charter, can place bonds only by decision of the board of directors, which is elected by the annual general meeting of shareholders. The issue of bonds is allowed after full payment of the company's authorized capital. A company can issue bonds without collateral and secured by a pledge of certain property of the company itself. The issue of unsecured bonds is permitted no earlier than the third year of the company's existence and subject to proper approval by this time of two annual balance sheets of the company. The decision on the issue should determine the form, terms and other conditions for repayment of bonds. In particular, the company has the right to stipulate the possibility of early repayment of bonds at the request of their owners.

The bond must have a par value. The par value of all issued bonds cannot exceed the size of the company's authorized capital.

c) A bill of exchange is a security certifying an 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 upon the maturity of the bill of exchange (Article 815 of the Civil Code of the Russian Federation).

Usually the bill is executed on paper. The person in whose favor the bill of exchange is issued may, without waiting for the maturity date of the bill of exchange, use it to make payments on his obligations or take it into account at the bank. When transferring a bill of exchange, it is necessary to comply with the formalities provided for by bill of exchange legislation. A special endorsement (endorsement) is made on the reverse side of the bill of exchange, ensuring that the bill of exchange has been transferred to another person. The person transferring the note assumes responsibility (to all subsequent holders) for repaying the obligation on the note.

In Russia, the bill was put into circulation by the resolution of the Presidium of the Supreme Soviet of the RSFSR "On the use of the bill in the economic circulation of the RSFSR" dated June 24, 1991.

The bill quickly spread in Russia. However, inept handling of it can cause significant losses. Therefore, increased requirements are justifiably imposed on bills of exchange, starting with the form in which they enter into civil circulation. The discovered shortcomings in the circulation of bills prompted the adoption of a corresponding act of supreme legal force. Currently, the Federal Law “On Bills of Exchange and Promissory Note” of March 11, 1997 is in force. Now only citizens and legal entities of the Russian Federation have the right to be obligated on bills of exchange and promissory notes. The Russian Federation, constituent entities of the Russian Federation, urban, rural settlements and other municipalities have the right to be obligated on bills of exchange and promissory notes only in cases specifically provided for by federal law. A bill of exchange and a promissory note must be drawn up only on paper (hard copy); These bills are order securities. Order securities are securities that imply the possibility of their transfer to another person by means of a transfer signature (endorsement).

d) A check is a security containing an unconditional written order from the drawer to the bank to pay the holder of the check the amount specified in it (Article 877 of the Civil Code of the Russian Federation). The specified amount is withdrawn from the drawer's check account at the bank and transferred or directly issued by the bank to the check holder. The bank may honor the check as a credit to the drawer.

Unlike a bill of exchange, a check is a short-term security. Checks can be order, registered (a security whose owner is registered by the company or contains the name of the owner in the text of the document; the transfer of rights to registered securities and the exercise of the rights secured by them require mandatory identification of the owner) and bearer (a security whose owner is recognized as a person possessing a document).

e) Savings (deposit) certificate.

A savings (deposit) certificate is a security that certifies the amount of a deposit made to a bank and the right of the depositor (certificate holder) to receive, upon expiration of a specified period, the deposit amount and the interest stipulated in the certificate in the bank that issued the certificate or in any branch of this bank. Savings certificates are issued to citizens, and deposit certificates are issued to legal entities. Savings (deposit) certificates can be bearer or registered (Article 844 of the Civil Code of the Russian Federation).

f) Bank savings book to bearer.

A bearer bank savings book is a security document confirming the deposit of a sum of money into a banking institution and certifying the right of the owner of the book to receive this amount in accordance with the terms of the cash deposit (Article 843 of the Civil Code of the Russian Federation). 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. Rights under a lost bearer savings book are restored in the manner prescribed for bearer securities.

g) Bill of lading

A bill of lading is a security of title that certifies the right of its holder to dispose of the cargo specified in the bill of lading and to receive the cargo after completion of transportation.

The bill of lading shall indicate:

Name of the vessel (if the cargo is accepted for transportation by a certain vessel);

Name of the carrier, place of acceptance of cargo for transportation, name of the sender;

Place of destination or direction of the vessel, name of the recipient of the cargo (bill of lading to bearer, registered bill of lading, order bill of lading);

Name, marking, condition, appearance and properties of the cargo;

Number of seats and/or weight and/or volume of cargo;

Data on freight and other payments due to the carrier;

Number of drafted copies of the bill of lading;

Signature of the captain or other representative of the carrier.

h) Privatization securities.

Privatization securities are government securities for special purposes, which are used as a means of payment for the acquisition of privatization objects.

i) Since March 1996, a new type of securities related to the storage of things has acquired legality. Under a warehousing agreement, a commodity warehouse (custodian) undertakes, for a fee, to store goods transferred to it by the goods owner (bailor) and to return these goods safely. A goods warehouse is an organization that carries out the storage of goods as a business activity and provides storage-related services.

To confirm the acceptance of goods for storage, the warehouse issues one of the following warehouse documents: a double warehouse certificate, a simple warehouse certificate (Articles 912-917 of the Civil Code of the Russian Federation).

A double warehouse receipt consists of two parts - a warehouse receipt and a pledge certificate (warrant), which can be separated from one another. A double warehouse receipt, each of its two parts and a simple warehouse receipt are securities. Goods accepted for storage under a double or simple warehouse certificate may be subject to collateral during its storage by pledging the corresponding certificate.

A simple warehouse receipt is issued to bearer. A double warehouse certificate is a registered security, which, along with other details, must indicate the name of the legal entity or the name of the citizen from whom the goods were accepted for storage, as well as the location (place of residence) of the goods owner.

The warehouse certificate and the pledge certificate can be transferred together or separately by endorsements. Holders of warehouse and pledge certificates have the right to dispose of the goods stored in the warehouse in full. The holder of a warehouse certificate, separated 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 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.

The goods warehouse releases the goods to the holder of the warehouse and pledge certificates (double warehouse certificate) only in exchange for both of these certificates together. To the holder of a warehouse certificate, who does not have a certificate of pledge, but has paid the amount of the debt under it, the goods are issued by the warehouse only in exchange for a warehouse certificate and subject to the presentation with it of a receipt for payment of the entire amount of the debt under the pledge certificate.

j) Mortgage. Applicable when concluding a mortgage agreement (real estate pledge). A mortgage is a registered security that certifies the rights of its legal owner to receive execution of a monetary obligation secured by a mortgage, the property specified in the mortgage agreement, without presenting other evidence of the existence of this obligation, as well as the right of pledge on the property specified in the mortgage agreement. All sheets of the mortgage form a single whole and must be numbered and sealed by a notary. Separate sheets of the mortgage cannot be the subject of transactions. The conclusion of a mortgage agreement is subject to notarization and state registration.

Conclusion.

So, a security is a document certifying, in compliance with the established form and required details, property rights, the exercise or transfer of which is possible only upon presentation. With the transfer of a security, all rights certified by it are transferred in the aggregate.

Securities include: government bond, bond, bill of exchange, check, deposit and savings certificates, bearer bank savings book, bill of lading, share, privatization security, and other documents that are classified as valuable papers.

Restoration of rights to lost bearer securities and order securities is carried out by the court in the manner prescribed by procedural legislation.

The securities themselves do not have any material value, but embody guaranteed rights to real, actual values: money, goods, services. They can serve as means of payment, credit, creation of treasures, distribution of profits, etc. By replacing real goods and money, securities create conditions for more efficient market financing: storage and circulation of commodity-money assets, their quick and economical transfer from one owner to another.

Bibliography:

1. Constitution of the Russian Federation of December 12, 1993 - M.: Eksmo, 2010.
2. Federal law of April 22 1996 N 39-FZ
   “On the securities market” (as amended on November 26, 1998, July 8, 1999, August 7, 2001, July 19, November 25, December 27, 2009)
3. Jurisprudence: Textbook, ed. Krylova Z.G. - M.: Higher School, 2003.
4. Jurisprudence, textbook, Marchenko M.N., Deryabina E.M.-M.: Prospect, 2009.
5. Jurisprudence, textbook, ed. Malko A.V - M.: Knorus, 2008
6. Jurisprudence, Shumilov V.M., textbook - M.: TK Velby, Prospect, 2008
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8. www.pravopravda.ru, article “Securities and their market”
9. www.consultant.ru, GC "Securities" please let us know.