1. Documentary securities may 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 performance on it.
3. An order security is a documentary security for which its owner is recognized as the person authorized to demand performance on it, if the security is issued in his name or passed to him from the original owner by a continuous series of endorsements.
4. A registered security is a documentary 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 right holder in the records maintained by the obligated person or acting on his behalf and having the appropriate license. The law may provide for the obligation to transfer such accounting to a person who has the appropriate license;
2) the owner of the security, if the security was issued in his name or passed to him from the original owner in the order of a continuous series of assignments of the claim (cessions) by making nominal endorsements on it or in another form in accordance with the rules established for the assignment of the claim (cessions).
5. The issue or issuance of bearer securities is allowed in cases established by law.
The possibility of issuing or issuing certain documentary securities as registered or order securities may be excluded by law.
6. Unless otherwise established by this Code, the law, or follows from the peculiarities of fixing rights to book-entry securities, the rules on registered documentary securities, the right holder of which is determined in accordance with accounting records, are applied to such securities.
Commentary on Art. 143 of the 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 determination of the procedure for classifying a document as securities. This article lists some types of securities and gives an indication of privatization securities, which are directly defined by other federal laws.
2. The first to be named are government bonds, which are a type of bonds mentioned below. According to Art. 816 of the Civil Code of the Russian Federation, a bond is recognized as a security certifying the right of its holder to receive from the person who issued the bond, within the period stipulated by it, the nominal value of the bond or other property equivalent. The bond also gives its holder the right to receive a fixed percentage of the nominal value of the bond or other property rights.
The allocation of government bonds is made according to the subject composition - depending on the issuer. At the same time, municipal bonds and bonds of legal entities can also be distinguished. The procedure for issuing state and municipal bonds is determined by the Federal Law of July 29, 1998 N 136-FZ "On the Features of the Issue and Circulation of State and Municipal Securities", in accordance with Art. 2 which the issuer of securities Russian Federation speaks federal agency executive power, 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 authority of the constituent entity of the Federation, which performs the said functions in accordance with the procedure 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 emissive securities in accordance with the Law on the Securities Market, certifying the right of their owner to receive these securities from the issuer. Money or depending on the conditions for the issue of these securities of other property, established percentages of the nominal value or other property rights within the time period stipulated by the conditions 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 (non-documentary - only registered); freely circulating and with a limited circulation; with security (collateral or otherwise) or without it; with a one-time maturity and with redemption by series within a certain period, with a fixed or floating coupon rate; conventional and convertible, i.e. convertible 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 performance of obligations on which is secured in full or in part by a pledge of mortgage coverage, and mortgage-backed housing bonds as mortgage-backed bonds. coverage, which includes only the rights of claim secured by the mortgage of 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 is enshrined in Part 1 of Art. 815 of the Civil Code of the Russian Federation and specified in relation to certain types of bills of exchange in the Convention on a Uniform Law on a Transferable and Promissory Note (concluded in Geneva on June 7, 1930), the Regulations on a Transferable and Promissory Note and in the Law on a Transferable and Promissory Bill. A bill of exchange is a security that certifies an unconditional obligation of the drawer (promissory note) or other payer specified in the bill (transfer bill) to pay a certain amount to the owner of the bill (bill holder) upon the expiration of the period stipulated by the bill. A bill is an unconditional, abstract, strictly formal obligation or order to pay a certain amount of money. Judicial practice in this area is quite diverse; it was reflected in the Decree 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 of the practice of resolving disputes related to the circulation of bills”, in the Review of the practice of resolving disputes related to the use of a bill 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. Dep. II. N 18. Art. 108.
Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 10.
Thus, a bill of exchange must contain:
1) the name "bill" included in the very text of the document and expressed in the language in which this document is drawn up; 2) a simple and unconditional offer to pay a certain amount; 3) the name of the person who must pay (the payer); 4) indication of the payment term; 5) an indication of the place where the payment is to be made; 6) the name of the person to whom or to whose order the payment is to be made; 7) indication of the date and place of drawing up the bill; 8) the signature of the person who issues the bill (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 recognized as a security containing an unconditional order of the drawer of the check to the bank to pay the amount specified in it to the holder of the check. Only a bank where the drawer has funds that he has the right to dispose of by issuing checks can be indicated as a payer on a check. A check drawer is a person (legal or natural) who has money in the bank, which he has the right to dispose of by issuing checks; holder of a check - a person (legal or natural) in whose favor a check is issued; payer - the bank in which the drawer's funds are located. In addition, § 5 Ch. 46 of the Civil Code of the Russian Federation, as well as the Regulation on cashless 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. No. 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 the deposit made to the bank, and the rights of the depositor (certificate holder) to receive the deposit amount and the interest stipulated in the certificate in the bank that issued the certificate, or in any branch after the expiration of the established period this bank. In case of early presentation of a savings (deposit) certificate for payment, the bank pays the amount of the deposit and interest on demand deposits, unless the terms of the certificate stipulate a different amount of interest. Relations with these securities are also regulated by the Regulations on savings and deposit certificates of credit institutions, approved by the 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 operations related to the issuance and redemption of savings 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 on the condition that:
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Bulletin of the Bank of Russia. 2000. No. 1.
– carrying out banking activities for at least two years;
— publication of annual reports (balance sheet and income statement), confirmed by an audit organization;
— compliance with banking legislation and regulations of the Bank of Russia;
— fulfillment of mandatory economic standards;
— availability 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 both in a single order and in series. Certificates must be current.
6. Savings book to bearer, in accordance with Art. 843 of the Civil Code of the Russian Federation, unlike a nominal savings book, is a security. In the savings book, the name and location of the bank must be indicated and certified by the bank, and if the deposit is made to a branch, also its corresponding branch, the account number for the deposit, as well as all amounts of funds credited to the account, all amounts of funds debited from account, and the balance of funds on the account at the time of presentation of the savings book to the bank. Unless a different state of the deposit is proved, the data on the deposit indicated in the savings book are 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 the savings book.
7. The bill of lading performs several functions simultaneously in accordance with the provisions of § 3 Ch. VIII KTM RF:
– confirms the acceptance of the cargo by the carrier (acceptance certificate);
– confirms the existence of a contractual relationship between the consignor and the carrier (contract of carriage by sea);
- confirms the relevant 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 each of them indicates the number of existing originals of the bill of lading. After the delivery of the cargo on the basis of the first of the submitted originals of the bill of lading, the rest of its originals become invalid.
In accordance with Art. 144 of the KTM RF, 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) the name of the sender and his location; 4) the name of the port of unloading in accordance with the contract for the carriage of goods by sea; 5) name of the recipient, if indicated by the sender; 6) the name of the cargo, the main brands necessary for identification of the cargo, an indication, in appropriate cases, of the dangerous nature or special properties of the cargo, the number of pieces or objects and the mass of the cargo or its quantity otherwise indicated. In this case, all data are indicated as they are presented by the sender; 7) the external condition of the cargo and its packaging; 8) freight in the amount payable by the recipient, or other indication that the 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) the 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 issuance security that secures the rights of its owner (shareholder) to receive a part of the profit of a joint-stock company in the form of dividends, to participate in the management of a joint-stock company and to a part of the property remaining after its liquidation. A share is a registered security. Shares may be issued only by joint-stock companies, both closed and open. Shares can be classified in various ways. So, 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 nominal value of the placed preferred shares must 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 may, 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 resolving issues of reorganization, liquidation of the company).
The charter of the company must determine the amount of the dividend and (or) the value paid upon liquidation of the company (liquidation value) on preferred shares of each type. The amount of the dividend and the liquidation value are determined in a fixed amount of money or as a percentage of the par value of preferred shares. The holders of preferred shares, for which the amount of the dividend has not been determined, are entitled to receive dividends on an equal basis with the holders of ordinary shares.
The charter of the company may provide for the conversion of preference shares of a certain type into ordinary shares or preference shares of other types at the request of shareholders - their owners or the conversion of all shares of this type within the time period specified by the charter of the company. In this case, the charter of the company at the time of the adoption of the decision, which 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 for conversion.
9. Privatization securities have now lost their relevance. Thus, earlier among the privatization securities it was possible to single out a privatization check, which was a state security of special purpose to the bearer and was used as a means of payment for the purchase of privatization objects (until July 1, 1994). basis legal regulation These relations were represented by Decree of the President of the Russian Federation of August 14, 1992 N 914 "On the introduction of the system of privatization checks in the Russian Federation".
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Russian newspaper. 08/27/1992. N 191.
10. Separate articles of the Civil Code of the Russian Federation also indicate the types and features of securities, both mentioned and not mentioned in the article under consideration. 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 certificate consists of two parts - a warehouse certificate and a pledge certificate (warrant), which can be separated from one another. The holder of the warehouse and pledge certificates has the right to dispose of the goods stored in the warehouse in full. The holder of a warehouse receipt separated from the pledge certificate has the right to dispose of the goods, but cannot take them 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 goods are pledged, this is noted on the warehouse certificate.
11. The list of securities given in this article is not exhaustive. Other types of securities are determined by federal laws.
Among the equity securities named in 27.5.3 of the Law on the Securities Market is the Russian Depositary Receipt. This is a registered issue-grade security that does not have a par value, certifying the 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 depository receipts to receive, instead of the Russian depositary receipt, the corresponding number of underlying securities and provision of services related to the exercise by the owner of the Russian depositary receipt of the rights secured by the represented securities. If the issuer of the underlying securities assumes obligations to the holders of Russian depositary receipts, the said security also certifies the right of its holder to demand proper fulfillment of these obligations.
12. The issuer's option is also defined in the Law on the Securities Market and is an emissive security that secures the right of its owner to purchase, within the time period specified therein and (or) upon the occurrence of the circumstances specified in it, a certain number of shares of the issuer of such an option at a price determined in an issuer's 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 for placement of securities convertible into shares established by federal laws. At the same time, the placement price of shares in fulfillment of the requirements for the issuer's options is determined in accordance with the price specified in such an option.
13. The Federal Law “On Mortgage Securities” mentions a mortgage participation certificate, which is a registered security certifying the share of its owner in the right of common ownership of mortgage coverage, the right to demand from the person who issued it proper trust management of mortgage coverage, the right to receive cash 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 pledgee under the obligation secured by the mortgage and under the mortgage agreement. A mortgage bond may certify the rights of a mortgagee under a mortgage by virtue of law and under an obligation secured by this mortgage, unless otherwise established by this Federal Law.
A mortgage bond 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 presenting other evidence of the existence of this obligation;
- the right to pledge property encumbered with a mortgage.
Drawing up and issuing a mortgage bond is not allowed if:
1) the subject of mortgage is:
- an enterprise as a property complex;
- the right to lease the property listed in this subparagraph;
2) the mortgage secures a monetary obligation, the amount of debt for which is not determined at the time of the conclusion of the contract and which does not contain conditions that make it possible to determine this amount at the appropriate time.
15. The Federal Law "On Investment Funds" refers to investment shares as securities. An investment share is a registered security certifying the share of its owner in the ownership of the property constituting a unit investment fund, the right to demand from management company proper trust management of a unit investment fund, the right to receive monetary compensation upon termination of the agreement on trust management of a unit investment fund with all owners of investment units of this unit investment fund (termination of the unit investment fund).
The 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 the payment of monetary compensation in connection with this, commensurate with its share in the right of common ownership of the property constituting this mutual investment fund, on any working day .
An investment unit of an interval unit investment fund also certifies the right of the owner of this unit to demand from the management company the redemption of the investment unit and the payment of monetary compensation in connection with this, commensurate with its share in the right of common ownership of the property constituting this unit investment fund, at least once per year for a period determined by the rules of trust management of this unit investment fund.
The 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 the payment of monetary compensation in connection with this, commensurate with its share in the right of common ownership of the property constituting this mutual investment fund, in the cases provided for Law on Investment Funds, the right to participate in the general meeting of owners of investment units and, if the rules of trust management of this unit investment fund provide for the payment of income from trust management of property constituting this unit 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 issuable bearer security. At the request of the owner, one certificate may be issued for two or more issued bearer securities of one issue purchased by him. The bearer's issuance securities certificate must contain the details provided for by this Federal Law. The requirements for blank certificates of issuable bearer securities, with the exception of blank certificates of issuable bearer securities with obligatory centralized storage, are established by regulatory legal acts of the Russian Federation.
The property rights of citizens also apply to securities, which can be documentary and non-documentary. Documentary securities are issued in accordance with the form specified by law. And this document also necessarily contains all the necessary details established at the legislative level.
Otherwise, securities can be easily recognized as null and void. In addition, they can be issued to the bearer or have a specific owner.
Person Responsible for the Execution of a Certificated Security
Until quite recently, responsibility for this was joint and several and was borne by the persons who issued documentary securities and the persons who endorsed them. The amendments made to the legislation of the Russian Federation determine that the proper performance on a documentary security is the performance to the legal owner of the security.
At the same time, the responsibility of the person responsible for this is also indicated. It lies in the fact that if the execution of a documentary security was intentionally carried out to an unlawful owner, then the person must compensate for all damage. This rule does not allow persons obliged to engage in enforcement to abuse their position. Proper legal execution of securities depends on many factors. First of all, it is a type of securities.
Execution procedure for a documentary security
The owner of bills of exchange and other securities has the right to bring to justice those persons who, by law, are obliged to answer to him.
In this case, a claim can be brought in any order against each of the subjects.
If the requirement is satisfied, then citizens who have fulfilled their obligations to the owner of the securities have the right to file a corresponding claim against other entities that also have obligations under these securities. This is the so-called right of recourse.
If bills of exchange or checks were presented for execution, then the refusal to fulfill obligations due to their invalidity or absence is illegal. In other words, a person must make sure that all the necessary data are available and execute the execution on a documentary security. At the same time, the owner of the securities may not check the grounds on which they were issued.
But there is also from this simple rule your exceptions. For example, a court may grant a refusal to pay bills of exchange if the owner knew that the documentary securities at the time of purchase were invalid or unenforceable. In addition, the owner of securities, upon revealing the fact of their forgery, has the right to demand from such an obligated person not only the full fulfillment of all obligations under these bills, but also compensation for damage.
He also has the right to apply to the court if there was a fact of default on the bill:
- in case of delay in payment;
- before the due date of payment, if the obligated person has denied acceptance (payment), if the person has lost the financial ability to make payment, regardless of whether documentary securities were previously accepted.
Compensation for losses to the holder of the right to a security for improper execution on a documentary security of the owner to whom the execution was made
According to the law, proper execution for all securities implies that the entity having the corresponding obligations fulfills them in relation to the owner of the securities.
And at the same time, the performance will be recognized as proper even if the owner turns out to be a fake owner of the rights to bills and other securities. This rule protects the person who identified the owner on formal grounds.
That is, the person liable for performance is not responsible for his mistake in the case where the wrong owner of the securities was formally identified as the proper owner. But the law also provides for the responsibility of the obligated person. To do this, it is necessary to prove in court that he knew that the owner was improper, that is, obtaining rights to securities was illegal.
In this situation, the obligated person must necessarily compensate the proper owner for all the damage that was caused by these actions. The real owner has the right to apply to the court with a statement of claim.
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, they strongly deviated from the schedule. Now we should have dealt with about the 300th issue, and we are only passing the 100th. Hopefully we'll catch up. Let's try to give more material today.
Let's start a new theme 1.3 called " The concept and types of securities". The topic is complicated only because there is a lot of confusion for those who do not operate in their vocabulary with words like assignor, avalist or bill of lading. But, as he wrote in, they 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 start...
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 to 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 is 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 mandatory details, property rights, the exercise or transfer of which is possible only upon presentation.
Answers:
A. Only I, II
B. Only I, III
C. Only II, III
D. All of the above
The Civil Code has Chapter 7 "Securities". We will touch on it more than once today. Article 142 paragraph 1 describes first two question point, i.e. what are securities.
It is worth noting that securities are documentary and non-documentary. They differ simply and clearly from the name. Documentary - these are those that are available in physical form, i.e. "paper". Non-documentary - these are those that are not in material form. Those. there is some record in the register that the paper exists, but physically there is no paper. It used to be they were in paper form, now this occurs only for certain types of securities.
Question code: 1.2.93
Person responsible for the execution of a documentary security:
I. 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. Has no 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 has entered circulation against his will;
IV. Not entitled to refer to the objections of other persons. responsible for the execution of this security in all cases.
Answers:
A. Only I, II
B. Only II, III
C. Only I
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. Promissory note;
VIII. Mortgage;
IX. Deposit (savings) certificate;
XI. Bank savings book to bearer;
XII. Bill of lading;
XIII. Simple warehouse certificate;
XIV. Clearing certificate of participation.
Answers:
A. All but V
B. All but VIII
C. All but XII
D. All of the above
A double warehouse certificate is a registered security consisting of two parts. One part can be used for pledging, and the other part can be used to dispose of the goods (for example, for sale or exchange). To receive the goods from the warehouse, both parts of the certificate must be presented.
Question code: 1.1.105
A bearer security is a documentary security for which the person authorized to demand performance on it is recognized as:
Answers:
A. Owner
B. Person named in security
Here again the Civil Code Chapter 7 Article 143. It is desirable to know it right by heart. Point 2 : " A bearer security is a documentary security on which a person authorized to demand performance on it, recognized as its owner. "
Question code: 1.1.106
An order security is a documentary security for which the person authorized to demand execution on it is recognized as:
Answers:
A. The bearer of the security
B. The owner, if the security is issued in his name or passed to him from the original owner by an uninterrupted series of endorsements
C. The person named in the 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 security is a documentary security for which its owner is recognized as the person authorized to demand execution on it, if the security is issued in his name or transferred to him from the original owner by a continuous series of endorsements."
Question code: 1.2.107
A registered security is a documentary security for which the person authorized to demand execution on it is recognized:
I. The owner of the security indicated as the right holder in the records maintained by the obligated person or 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 the order of a continuous series of assignments of a claim (cessions) by making nominal endorsements on it or in another form in accordance with the rules established for the assignment of a claim (cessions) );
III. The bearer of the security;
IV. A person named in a security who can exercise these rights himself or appoint another authorized person by his order (order).
Answers:
A. Only I, II
B. Only I, III, IV
C. Only III
D. All of the above
From there. Civil Code Chapter 7: "A registered security is a documentary 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 right holder in the records maintained by the obligated person or acting on his behalf and having the appropriate license. The law may provide for the obligation to transfer such accounting to a person who has the appropriate license;
2) the owner of the security, if the security was issued in his name or passed to him from the original owner in the order of a continuous series of assignments of the claim (cessions) by making nominal endorsements on it or in another form in accordance with the rules established for the assignment of the claim (cessions)."
Question code: 1.1.108
If the document does not contain the mandatory details of a documentary security, if it 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. Not a security and does not retain the value of written evidence
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 such a definition of all securities, because it is optimally suited 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 non-documentary securities?
Documentary securities are securities in physical form, that is, those that are issued on paper. Such papers are, as a rule, of two types: bearer, when the owner of the security price is the person who owns it in this moment, and registered, that is, such when the owner's data is entered in a special register.
Securities without a fixed owner (bearer) have a high degree of turnover and give the owner certain rights, for example, the right to pay 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 states 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 taxation.
Registered securities are distinguished by the fact that they are provided with a certificate with the name and details of the owner, which are also entered in a special register. The transfer of registered securities to another person results in changes in the register.
Book-entry securities differ from documentary ones in that they do not have physical form. That is, such a security, as it were, does not exist, but there is only an entry in the register of property rights. We can say that non-documentary securities have an intangible form of existence. Nevertheless, this type of securities has become the most reliable and widespread in Russia. The circulation of book-entry 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 this security. In the process of issuing securities can be issued in any form, but the form must be the same for this issue. The certificate of conformity with a documentary security is its certificate. Ownership of a non-documentary security is certified by an entry in a special register.
28. Representation: concept, types
Carrying out economic activities, organizations enter into various legal relations with their counterparties: under contracts for supply, transportation, capital construction, etc.
As a rule, legal actions and transactions are carried out by organizations and citizens themselves, without seeking help from third parties. However, actions aimed at achieving certain legal consequences, by virtue of various reasons may not always be performed by organs legal entity or a citizen directly.
Impossibility of direct participation in civil circulation can be actual or legal. To actual include the illness of the participant in the transaction, his employment, being on a business trip, etc. legal- prohibition of certain participants in the transaction to perform 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, representational relations 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 civil rights and obligations of the represented (Article 182 part 1 Civil Code of the Russian Federation).
The representation is divided into:
§ voluntary;
§ Mandatory.
Voluntary representation
Voluntary representation arises by virtue of an agreement between the represented and the representative. The scope of authority of the representative is established by the person represented and can be presented in the form of a special document (power of attorney) or a letter (letter of credence).
Mandatory representation
Mandatory representation arises:
§ on the basis of acts authorized government agencies and local governments;
§ On the basis of the law.
Representation under the law is based on the rules of law, which determine the terms of reference of the representative. For example, Art. 28 part 1 of the Civil Code of the Russian Federation expressly states that parents, adoptive parents or guardians are the legal representatives of children under the age of 14, and have the right to make various transactions and legal actions on their behalf.
Representation based on an administrative act is similar to representation by law. The terms of reference of a representative are established by administrative acts issued by organizations and enterprises. Both in the case of representation based on law and representation by virtue of an administrative act, the powers of the representative are exercised only after the issuance of the relevant act.
Commercial representation
In some cases, the authority of the representative is evident from the environment in which he acts. Thus, there is no doubt about the representation of sellers, store cashiers, clerks in the storage room, etc., who, according to the conditions of their official activity or the situation, act as such. In retail, the powers of representatives are determined by the form of division and cooperation of labor in the store. For example, if there is one employee in a store, then he is naturally entitled to sell goods and receive payment for them. If, in addition to the seller, there is a cashier, then the seller's powers are limited to the release of goods, and the cashier - to accept payment.
29. Power of attorney: concept, types, terms of validity, grounds for cancellation. Retrust.
power of attorney a written authorization 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 the issuance of a power of attorney are agreements that determine the internal relations between the representative and the represented ( labor contract, contract of commission, etc.). From a legal point of view, a power of attorney is a unilateral transaction, since in order to issue it, it is enough to express the will of one person for another person to perform 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 certified by a notary for making transactions that require a notarized form, and for taking actions in relation to other states, cooperative 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 (Article 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 act 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 a stationary medical institution where he is being treated.
A power of attorney can be issued both directly to a citizen and a legal entity. However, the powers of a legal entity specified in the power of attorney should be limited to the scope of its special legal capacity. Otherwise, the power of attorney is invalidated (Articles 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 values by state, cooperative or public organizations.
The peculiarity of drawing up a power of attorney to receive inventory items is that the list of valuables to be received, provided on the reverse side of the power of attorney, is filled in in cases where the names and the number of valuables to be received are not indicated in the vacation document. Otherwise, the list of valuables on the reverse side of the power of attorney is crossed out.
A person who has received a power of attorney is obliged, no later than the next day after each receipt of valuables, regardless of whether inventory items are received by proxy in full or in parts, to submit documents to the accounting department of the organization or centralized accounting department about the execution of orders for delivery to the warehouse or to the corresponding financially responsible person received material values. Unused powers of attorney must be returned to the enterprise (organization, institution) that issued them on the day following the expiration of the power of attorney. At the end of the year, such unused powers of attorney are destroyed, about which an act is drawn up.
Persons who have not reported on the use of powers of attorney for which the validity period has expired are not issued new powers of attorney.
Depending on the content of 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 (receipt of goods from a warehouse, sale of a house, etc.).
Special power of attorney
A special power of attorney gives the representative the right to perform similar actions within a certain period of time.
Such, for example, is a power of attorney issued to the forwarding agent of the enterprise to receive goods that arrived at the railway station at the address of the enterprise; cashier to receive money and cash documents in a bank, etc.
General power of attorney
A general power of attorney gives the representative the opportunity to make a variety of property management transactions.
As a special variety, one can single out a power of attorney issued in the order of substitution. The person to whom the power of attorney has been issued may entrust it to another person if authorized to do so by the power of attorney or forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney. Reassignment is the transfer of authority by a representative to another person.
The power of attorney is an urgent document(Article 186 part 1 of the Civil Code of the Russian Federation). The term of its validity may be specified by the representative 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 shall remain in force for one year from the date of issue.
The date of the power of attorney is of great legal importance. If a specific indication in the power of attorney of its validity period is an essential condition for 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. In the absence of a 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 a power of attorney is issued must personally perform those actions for which he is authorized. Along with this law, in some cases, it is allowed to transfer powers - substitution. 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 person represented (Article 187 Part 1 of the Civil Code of the Russian Federation).
A power of attorney issued by way of substitution must be notarized. But for this, it is necessary to provide the main power of attorney, which stipulates the right of substitution. The scope of authority and validity period of a power of attorney issued by way of substitution may not exceed the authority and period specified in the main power of attorney.
The representative who transferred his powers to another person is obliged to notify the represented person and provide him with the necessary information about the specified person. Otherwise, he is responsible for the actions of the person to whom he transferred the powers, as for his own.
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 is possible only upon its presentation. Classic documentaries:
- bearer;
One documentary form of issue security can be certified by only one certificate. One certificate may certify one, several or all securities with one state registration number.
A documentary security may be in the hands of its owner (in this case, the ownership of it passes to the new owner along with its transfer) or transferred by him for storage in (in this case, the ownership of it passes to the new owner at the time of transfer to the depo accounts at 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 issuance security, the owner may demand the exercise of the rights attached to this security to the extent established by the certificate.
The issuer of a documentary security fulfills its obligations under it in favor of the person who presents the certificate of the security. When a documentary security is in the depository, the obligations of the issuer are fulfilled in favor of the person whose name will be indicated by the depositary to the issuer.
Until the 2nd half of the 20th century. the documentary security was the only form of securities. With the development of modern computer and accounting technologies, equity securities began to be issued in and recorded by accounting entries in the registry system or in depositories.
When issuing registered state and municipal securities in documentary form with mandatory centralized custody (documentary security with mandatory centralized custody), the name of the depositary is indicated in the global certificate.
