A documentary security is a document, fixed in physical paper form, that forms the conclusion of the parties, the obligations of one of the parties, or other regulations, the implementation of which is guaranteed by this very receipt. Such a conclusion may involve the execution of civil agreements, rights to real estate and other material assets, or a debt obligation. These obligations can only be fulfilled upon presentation of this very document. A certificated security must record not only the obligations themselves, but also the details of the persons who entered into the agreement. Thus, such a certificate is issued in the form of registered securities, or conclusions confirming the right of ownership and accompanying one or another valuable documentation.
The legal regime for handling these certificates, as well as accounting for them as an object of civil rights, is based on the federal law “On the Securities Market” dated April 22, 1996, which gives the full legal concept of how, among the possible securities, the form under study is: “Documentary form issue-grade securities - a form of issue-grade securities receipts in which the owner is identified on the basis of presentation of a properly executed security certificate or, in the case of depositing one, on the basis of an entry in a securities account.”
Main types
Among the most common types of such documentation are personal certificates, bearer and order-type papers. In the popular classification, such assets are divided into:
- Bills of exchange are debt obligations of one party to another, entailing not only the direct return of the debt money supply, but also the agreed interest accrued as part of the transaction.
- All kinds of checks are not only checks confirming the purchase of a certain product, but also payment checks, that is, those that carry the issuer’s consent to cover a certain financial cost. Individual checks, which are a receipt with the possibility of withdrawing the specified amount from the issuer's bank account, are also included in this group.
- Certificates, both depository and savings. This type of asset allows the specified holder to manage funds in savings and deposit accounts, as well as claim to receive bank interest under the deposit contract.
- Bank books, which, in essence, represent the same checks, but a variety of books is possible, withdrawal of funds from which is possible only at the cash desk of the bank that issued this very book.
- Bills of lading are an act of confirmation of shipment of cargo. A variation of the personalized track number, which allows the owner to dispose of the cargo for his own purposes.
A bill of lading is a document whose duty is to confirm the fact that the cargo has been sent by the shipper by sea. It is most often used when the vessel is common, that is, it transports goods belonging to different shippers. Each of these shippers receives a certificate - a bill of lading - as confirmation of delivery obligations, which gives the right to receive the cargo upon delivery. The issuance is usually carried out by the captain of the ship on behalf of either the owner of the ship or on behalf of the charterer, that is, the lessee of the ship. Often in maritime practice, the cargo transporting company is not the owner of the vessel, but only rents it from larger companies or directly from the manufacturer. The main functions of the bill of lading are to record the ship's acceptance of the cargo, the fact of its delivery, as well as subsequent documentation of its acceptance by the original owner. Another characteristic of the certificate is whether the bill of lading is linear or charter. A liner bill of lading indicates in its entries a description of the terms of the contract aimed at carrying out sea transportation, which is carried out according to a strictly predetermined time regime, according to the route between two specific and pre-agreed ports. A line-type bill of lading regulates the mutual relations of the cargo carrier with both the recipient and the sender of the goods. A charter bill of lading is used when tramp transportation is carried out.
Registered shares are also a documented asset. Most often these are preferred assets, where the holder's name is written directly on the slip. In order to carry out transactions with such a share, it is necessary to formalize a transaction to transfer all rights to the share, and to conclude an agreement in accordance with the regulations of the exchange platform and the regulations of the state of which the participants in the transaction are citizens. A registered share allows you to dispose of it as a separate asset when distributing an inheritance and making a will. Also, a share can be purchased and named as a gift document, and then transferred to the new owner. Disposal of shares is made at the discretion of the specified holder, but in accordance with the circulation rules established by the issuer, as well as the above regulations.
A bill of exchange is an asset that forms a debt obligation of the issuer to the holder, in accordance with the terms, amount and interest specified in the bill of exchange, as well as interest, if provided for by the terms of the transaction. The bill can be issued not only by the issuing company, but also to states as part of a municipal program. Such receipts are considered a very reliable investment instrument and can bring significant profits in a short period of time. Most often, such bills are issued by the municipality for the implementation of certain government programs for the construction of housing stock, repair of infrastructure and roads, as well as replenishment of the region’s working budget.
Savings bank accounts
A savings bank book is also an asset that records the right holder. According to the entries in the book, the bearer must also be the owner indicated in it, otherwise the issuance of funds is not recognized as legal. An exception can only be a contract specially concluded for this purpose, which expands access to funds upon presentation not only to the specified holder, but also to the persons listed in the contract. This practice was widely used when receiving pension contributions from savings banks, when, instead of the pensioner, the pension due to him was withdrawn by the specified persons in the event of poor health of the person indicated in the book. In this case, it is possible to transfer funds to bearer. The bank book must contain certain information in accordance with regulatory acts, but points must be mandatory that indicate the person - the owner of the book, the bank that issued it, the validity period, the history of the accrual and withdrawal of funds, as well as licensing, that is necessary security measures such as watermarks, seals, signatures and other possible security measures.
A savings certificate is another possible method of documenting money transactions. A savings account opened in a certain bank by a certain person involves storing money there and receiving additional income in the form of interest accrued by the bank, in accordance with the contractual terms of opening this very account. The presentation of such a document guarantees the holder the return of the amount debited from the account. When concluding an agreement, the bank requests a list of persons who will be given access to the money in the account. The holder has the right to indicate a person and provide him with full access to the funds, or prohibit the issuance of the amount to anyone other than him. The presentation of a receipt by the owner along with identification documents guarantees payment to him of all funds available on deposit. In the same way, if such a possibility is indicated in the agreement with the bank, the owner is able to sell the bank agreement he has, and at the same time the amount available in the account to another person, by re-registering the transaction with the bank. After documenting such an event, the third party, the new owner, receives the right to collect funds from the deposit.
Regulation and registration
It is important to understand that one copy of a valuable certificate in documentary form can be certified by only a single certificate, but one certificate can certify one, or several, or all possible exchange assets within the series that have the same serial state number received during registration. Such an active documentary type record can be stored directly with its owner, then the ownership rights secured in it will transfer along with the transfer of the paper itself. It is possible to deposit an asset in a depository, and in this case, all rights to it are transferred to the new owner when transfers are made to the depository on a securities account, within the framework of the above-mentioned law governing the position of documentary trade receipts. The rights of property ownership, which are contained in a security in documentary form, which can even be a share, as well as the scope of these rights, are prescribed in receipts, or in an authorized decision on its issue. In this framework, if there are significant textual discrepancies between the decision on issue and the certificate, the owner of the emission exchange commodity has every right to demand the exercise of the rights secured by it to the extent that the ratified contract implies.
The organization that issued the issue and is the issuer undertakes to undertake all matters related to the fulfillment of obligations in accordance with the specified documentation in full and in favor of the person who presents the establishing certificate. If the security is stored in a depositary, then the obligations must be fulfilled in relation to the person who is indicated to the issuer by the depositary. Documentary-type securities were the only type of investment instruments until the middle of the last century. However, with the development of information and accounting technologies, the issue of non-documentary stock exchange assets has become appropriate. Examples of use made it necessary to record their release by maintaining entries in the register or in depositories. Classic exchange commodities - stocks and bonds - are more susceptible to such influence. In the likely event that goods from a trading platform are released in documentary form with the condition of mandatory centralized storage, the certified depository must be indicated in the certificate.
(as amended by Federal Law dated July 2, 2013 N 142-FZ)§ 1. General Provisions
Article 142. Securities
1. Securities are documents that comply with 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).
Securities are also recognized as obligations and other rights that are enshrined in the decision on the issue or other act of the person who issued the securities in accordance with the requirements of the law, and the exercise and transfer of which are possible only in compliance with the rules for accounting for these rights in accordance with Article 149 of this Code ( uncertificated securities).
2. Securities are a share, a bill of exchange, a mortgage, an investment share of a mutual investment fund, a bill of lading, a bond, a check and other securities named as such in the law or recognized as such in the manner prescribed by law.
The issue or delivery of securities is subject to state registration in cases established by law.
Article 143. Types of securities
1. Documentary securities can be bearer (bearer securities), order and registered.
2. A bearer security is a documentary security for which its owner is recognized as the person authorized to demand execution on it.
3. An order is a certified security for which the person authorized to demand execution on it is recognized as its owner if the security is issued in his name or transferred to him from the original owner through a continuous series of endorsements.
4. A registered security is a certified security for which one of the following specified persons is recognized as the person authorized to demand execution on it:
1) the owner of the security, indicated as the copyright holder in the records maintained by the obligated person or a person acting on his behalf and having the appropriate license. The law may provide for the obligation to transfer such records to a person who has the appropriate license;
2) the owner of a security, if the security was issued in his name or transferred to him from the original owner in a continuous series of assignments of claims (cessions) by making personal endorsements on it or in another form in accordance with the rules established for the assignment of claims (cessions).
5. The issue or delivery of bearer securities is permitted in cases established by law.
The possibility of issuing or issuing certain documentary securities as registered or warranted securities may be excluded by law.
6. Unless otherwise established by this Code, the law or does not follow from the peculiarities of fixing rights to uncertificated securities, the rules on registered documentary securities, the copyright holder of which is determined in accordance with the accounting records, apply to such securities.
§ 2. Documentary securities
Article 143.1. Requirements for certificated securities
1. Mandatory details, requirements for the form of a certificated security and other requirements for a certificated security are determined by law or in the manner established by it.
2. If a document does not contain the required details of a documentary security, or does not comply with the established form and other requirements, the document is not a security, but retains the value of written evidence.
Article 144. Execution on a certificated security
1. Proper execution of a certified security is considered to be execution by the person specified in paragraphs 2 - 4 of Article 143 of this Code (the owner of the security).
2. If the person responsible for the execution of a certified security knew that the owner of the security to whom the execution was made is not the proper holder of the right to the security, he is obliged to compensate for the losses caused to the holder of the right to the security.
Article 145. Objections regarding a certificated security
1. The person responsible for execution of a certified security has the right to raise against the claims of the owner of the security only those objections that arise from the security or are based on the relationship between these persons.
The person who drew up a documentary security is liable for the security even if the document came into circulation against his will.
The rules for limiting objections provided for in this paragraph do not apply if the owner of the security at the time of its acquisition knew or should have known about the absence of a basis for the emergence of rights certified by the security, including the invalidity of such a basis, or about the absence of rights of previous owners of the security securities, including the invalidity of the basis for their origin, as well as if the owner of the security is not its bona fide purchaser (Article 147.1).
2. Persons responsible for execution of an order security do not have the right to refer to the objections of other persons responsible for execution of this security.
3. Against a demand for execution on a certified security, the person indicated as responsible for execution on it may raise objections related to the forgery of such a security or challenging the fact of his signing the security (forgery of a security).
Article 146. Transfer of rights certified by documentary securities
1. With the transfer of the right to a documentary security, all rights certified by it are transferred in the aggregate.
2. The rights certified by a bearer security are transferred to the acquirer by handing over the security to him by the person who alienated it.
Rights certified by a bearer security may pass to another person regardless of its delivery in cases and on the grounds established by law.
3. The rights certified by an order security are transferred to the acquirer by handing it over with the making of an endorsement on it - an endorsement. Unless otherwise provided by this Code or the law, the rules on the transfer of bills of exchange established by the law on bills of exchange and promissory notes are applied to the transfer of order securities.
4. The rights certified by a registered documentary security are transferred to the acquirer by handing over the security to him by the person making its alienation, with a personal endorsement on it or in another form in accordance with the rules established for the assignment of a claim (assignment).
The norms of paragraph 1 of Chapter 24 of this Code apply to the transfer of rights certified by registered documentary securities in the order of assignment of a claim (assignment), unless otherwise established by the rules of this chapter, another law or does not follow from the essence of the relevant security.
5. In the event of failure to fulfill the obligation to transfer an order or registered documentary security, the acquirer has the right to demand its withdrawal from the person in whose possession it is located, with the exception of cases where the security bears an endorsement or endorsement of the person who made the alienation, according to which the rights are transferred to another face.
6. In case of failure to fulfill the obligation to make an endorsement or endorsement on an order or registered documentary security, the transfer of rights to an order or registered documentary security is carried out at the request of the acquirer on the basis of a court decision by making an inscription on the security by the person carrying out the execution of the court decision, which has the force of an endorsement or endorsement.
7. The transfer of rights certified by an order or registered security to another person on grounds other than transfer under an agreement is carried out by acquiring the right to the security in cases and on the grounds established by law.
8. The transfer of rights to order or registered securities is confirmed:
1) in case of inheritance - by a notary’s mark on the security itself, which has the force of an endorsement or endorsement of the previous copyright holder;
2) when selling such securities in the event of foreclosure on them - with a mark from the person authorized to sell the property of the owner of such securities;
3) in other cases - on the basis of a court decision with a mark from the person carrying out the execution of the court decision.
9. When recording rights to a registered documentary security, the rights are transferred to the person indicated in the security at the time a note on the transfer of rights is made in the records. The mark is made on the basis of a deed of transfer executed by the parties in the presence of the person carrying out the accounting in accordance with paragraph 4 of Article 143 of this Code, or on the basis of a notarized deed of transfer presented to the person carrying out the accounting by one of the parties.
10. If the person carrying out the accounting in accordance with paragraph 4 of Article 143 of this Code evades making a note on the transfer of rights in the records, the person in whose name the transfer deed was made may demand in court that the corresponding mark be made in the records.
Article 147. Responsibility for the validity of rights certified by a certified security
1. The person who transferred the certified security is liable for the invalidity of the rights certified by the security, unless otherwise provided by law.
The person who transferred the documentary security is responsible for the fulfillment of the obligation under it in the presence of an appropriate clause, as well as in other cases established by law.
2. The owner of a security who has discovered its forgery or falsification has the right to demand from the person who transferred the security to him the fulfillment of obligations under such security and compensation for losses.
Article 147.1. Peculiarities of claiming documentary securities from a bona fide purchaser
1. The reclaiming of documentary securities from someone else’s illegal possession is carried out in accordance with the rules of this Code on the reclaiming of things from someone else’s illegal possession with the features provided for by this article.
2. The right to reclaim documentary securities from someone else’s illegal possession belongs to the person who, at the moment when the securities left his possession, was their legal owner.
3. Bearer securities cannot be demanded from a bona fide purchaser, regardless of what right they certify, as well as order and registered securities certifying a monetary claim.
4. The right holder of a security who has lost it as a result of unlawful actions has the right to demand from the person who acquired it from a third party, regardless of whether such third party is a bona fide or dishonest purchaser, or is recognized as the legal owner, to return the security or compensate it market value, if the specified acquirer from whom the security is sought, through his fraudulent or other illegal actions, contributed to the loss of the rights of the legal owner to the security or, as a previous owner, knew or should have known about the existence of rights of other persons to the security.
5. A person to whom a certified security has been returned from someone else’s illegal possession has the right to demand from the dishonest owner the return of everything received on the security, as well as compensation for losses; from the bona fide owner - the return of everything received on the security from the time when he learned or should have learned about the illegality of its possession or received from the court a notice of a claim filed against him to reclaim the security.
If the illegal owner has taken advantage of the pre-emptive right to acquire any property provided by the security, the person to whom the documentary security was returned from someone else’s illegal possession has the right to demand from such owner the transfer of the acquired property to him, subject to compensation for its value at the price of acquisition of the said property by the illegal owner, and the unscrupulous owner also has the right to demand compensation for losses.
Article 148. Restoration of rights under a certificated security
1. Restoration of rights under a lost bearer security is carried out by the court in the order of summons proceedings in accordance with procedural legislation upon the application of the person who has lost the security to recognize it as invalid and restore rights under the security.
2. A person who has lost an order security has the right to notify all persons obligated under it in writing, indicating the reasons for the loss.
An obligated person who has received a statement from a person who has lost an order security, if it is presented by another person, must suspend the execution of the security to the bearer and inform him of the applicant’s claims, as well as inform the applicant about the person who presented the security. If, within three months from the date of the person’s statement about the loss of the order security, the person who lost the security did not apply to the court with a corresponding demand to the bearer of the security, the obligated person must carry out execution to the bearer of the security. If a dispute between the person who lost the security and the person who presented the security is resolved by the court, execution is made to the person in whose favor the court decision was made.
In the absence of a dispute about the right to an order security, the person who has lost it has the right to demand execution from the obligated person in court.
3. Restoration of rights to a lost registered documentary security is carried out by the court in special proceedings in cases of establishing facts of legal significance, in accordance with procedural legislation, upon the application of the person who lost such a security, and in cases provided for by law, also other persons .
4. If records about the owners of registered documentary securities are lost, the person keeping records is obliged to immediately publish information about this in the media in which information about bankruptcy is subject to publication, and offer to the persons who were indicated as copyright holders in the records, submit registered securities within the period specified when publishing the information and which cannot be less than three months from the date of its publication.
Records of the owners of registered documentary securities must be restored by the person maintaining such records within a month from the date of expiration of the deadline for the presentation of securities by their owners.
If the person keeping the records evades the restoration of the accounts, they are subject to restoration by the court at the request of an interested person in the manner established by procedural legislation.
5. The person obligated under a registered documentary security and the person carrying out, on his behalf, the accounting of rights to securities, shall be jointly and severally liable for losses caused to the owners of such securities as a result of the loss of records or violation of the procedure and terms for restoring such records, if will not prove that the loss or violation occurred due to force majeure.
Article 148.1. Immobilization of certificated securities
In accordance with the law or in the manner established by it, documentary securities can be immobilized, that is, transferred for storage to a person who, in accordance with the law, has the right to store documentary securities and (or) record rights to securities. The transfer of rights to immobilized securities and the exercise of rights certified by such securities are regulated by Articles 149 - 149.5 of this Code, unless otherwise provided by law.
§ 3. Uncertificated securities
Article 149. General provisions on uncertificated securities
1. The persons responsible for the execution of a book-entry security are the person who issued the security, as well as the persons who provided security for the fulfillment of the corresponding obligation. Persons responsible for execution of a book-entry security must be indicated in the decision on its issue or in another act provided by law of the person who issued the security.
The right to demand from an obligated person performance under a book-entry security is recognized for the person indicated in the records as the copyright holder, or for another person who, in accordance with the law, exercises the rights under the security.
2. Accounting for rights to uncertificated securities is carried out by making entries in accounts by a person acting on behalf of the person obligated under the security, or by a person acting on the basis of an agreement with the copyright holder or with another person who, in accordance with the law, exercises rights under the security . Maintaining records of such rights is carried out by a person who has a license provided for by law.
3. Disposition, including transfer, pledge, encumbrance in other ways of uncertificated securities, as well as restrictions on the disposal of them, can be carried out only by contacting the person who records the rights to uncertificated securities to make appropriate entries.
4. The person who issued an uncertificated security and the person who, on his behalf, records the rights to such securities, shall be jointly and severally liable for losses caused as a result of violation of the procedure for recording rights, the procedure for performing transactions on accounts, loss of accounting data, and provision of false information about credentials, unless they prove that the violation occurred due to force majeure.
The person responsible for the execution of a book-entry security is not liable for losses caused as a result of violation of the procedure for recording rights by persons acting on the basis of an agreement with the copyright holder or with another person who, in accordance with the law, exercises rights under the security.
Article 149.1. Execution on uncertificated securities
1. Proper execution of an uncertificated security is considered to be the execution made by the obligated person to the persons specified in paragraph two of paragraph 1 of Article 149 of this Code.
The law may establish cases when, as of a certain date, a list of persons entitled to demand execution of uncertificated securities is fixed. The execution performed by such persons is considered proper.
2. In cases provided for by law, execution by persons other than those specified in paragraph 1 of this article is considered proper.
3. The rules provided for in paragraph 2 of Article 144 and Article 145 of this Code apply to relations related to the execution of uncertificated securities, unless this contradicts the essence of such securities.
Article 149.2. Transfer of rights under an uncertificated security and the occurrence of an encumbrance on an uncertificated security
1. The transfer of rights to uncertificated securities to the acquirer is carried out by writing off uncertificated securities from the account of the person who alienated them and crediting them to the account of the acquirer based on the order of the person who alienated them. The law or an agreement between the copyright holder and the person who records the rights to uncertificated securities may provide for other grounds and conditions for the write-off of securities and their crediting, including the possibility of writing off securities from the account of the person who made the alienation without submitting his order.
2. The rights to an uncertificated security pass to the acquirer from the moment the person responsible for recording the rights to uncertificated securities makes a corresponding entry in the acquirer’s account.
3. A pledge, encumbrance in other ways on uncertificated securities, as well as restrictions on their disposal arise after the person keeping records of rights makes a corresponding entry about the pledge, encumbrance or restriction on the account of the copyright holder or, in cases established by law, on the account of another person.
An encumbrance on uncertificated securities may also arise from the moment they are credited to the account in which, in accordance with the law, the rights to the encumbered uncertificated securities are recorded.
Making entries about a pledge or other encumbrance of uncertificated securities is made on the basis of an order of the copyright holder (pledge order, etc.), unless otherwise provided by law. Entries on changes in the terms of the encumbrance and on its termination are made on the basis of an order of the copyright holder with the consent in writing of the person in whose favor the encumbrance is established, or without such an order in cases provided for by law or by agreement of the copyright holder with the person who records the rights to uncertificated securities , and the person in whose favor the encumbrance is established.
4. If the person who has carried out the alienation, or the person providing securities to secure the fulfillment of an obligation, evades from submitting to the person who records the rights to uncertificated securities an order to carry out an operation on the account, the acquirer or the person in whose favor the encumbrance of uncertificated securities is established , has the right to demand in court the making of entries on the transfer of rights to securities or on their encumbrance on the terms stipulated by the agreement with the person making the alienation or with the person providing securities to secure the fulfillment of the obligation.
If there are several persons in whose favor an obligation has been established to transfer or encumber rights to the same book-entry securities, if the operation to transfer or encumber them has not yet been carried out, the person in whose favor the obligation arose earlier has priority. and if this cannot be established - the person who first filed the claim.
5. Registration of the transfer of rights to uncertificated securities in the order of inheritance is carried out on the basis of a certificate of the right to inheritance presented by the heir (Article 1162).
The transfer of rights to uncertificated securities upon the sale of such securities in the event of a foreclosure on them is formalized on the basis of an order of a person authorized to sell the property of the copyright holder.
Registration of the transfer of rights to uncertificated securities in accordance with a court decision is carried out by the person who records the rights, on the basis of a court decision or on the basis of an act of the person executing the execution of the court decision.
6. Evasion or refusal of the person responsible for recording the rights to uncertificated securities to carry out an operation on the account may be challenged in court.
Article 149.3. Protection of violated rights of copyright holders
1. The copyright holder from whose account uncertificated securities were unlawfully written off has the right to demand from the person to whose account the securities were credited the return of the same number of relevant securities.
Uncertificated securities certifying only a monetary right of claim, as well as uncertificated securities acquired at organized auctions, regardless of the type of right being certified, cannot be claimed from a bona fide purchaser.
If uncertificated securities were acquired free of charge from a person who did not have the right to alienate them, the copyright holder has the right to reclaim such securities in all cases.
2. If uncertificated securities, which the copyright holder has the right to claim, were converted into other securities, the copyright holder has the right to claim those securities into which the securities written off from his account were converted.
3. The right holder, from whose account uncertificated securities were unlawfully written off, if there is an opportunity to purchase the same securities at organized trading, at his choice, has the right to demand from the persons who are liable to him for the losses caused by this, the acquisition of the same securities at their expense or reimbursement of all expenses necessary for their acquisition.
Article 149.4. Consequences of claiming uncertificated securities
1. If the right holder’s demand for the return of uncertificated securities is satisfied in accordance with paragraph 1 or paragraph 2 of Article 149.3 of this Code, the right holder shall enjoy, in relation to the person from whose account the securities were returned to him, the rights specified in paragraph 5 of Article 147.1 of this Code.
2. In the event of the exercise by unauthorized persons of the right to participate in the management of a joint-stock company or other right to participate in making a decision of a meeting, certified by uncertificated securities, the right holder may challenge the corresponding decision of the meeting, violating his rights and interests protected by law, if the joint-stock company or the persons whose will is expressed mattered when making the decision of the meeting, they knew or should have known about the existence of a dispute about the rights to uncertificated securities and the vote of the right holder could influence the decision.
A claim to challenge the decision of the meeting may be brought within three months from the day when the person entitled to the security learned or should have learned about the unlawful write-off of securities from his account, but no later than one year from the date the corresponding decision was made.
The court may uphold the decision of the meeting if invalidation of the decision would cause disproportionate damage to the creditors of the joint stock company or other third parties.
Article 149.5. Consequences of loss of accounts certifying rights to uncertificated securities
1. If records certifying rights to uncertificated securities are lost, the person recording the rights is obliged to immediately publish information about this in the media in which information about bankruptcy is subject to publication, and apply to the court to restore the records of rights. in the manner established by procedural legislation.
The requirement to restore the records of rights to uncertificated securities may be submitted by any interested party. Restoration of rights registration data is carried out in the manner established by procedural legislation. When restoring records of rights to uncertificated securities, entries about the rights holders are made on the basis of a court decision.
Information on the restoration of records of rights to uncertificated securities is published for public information in the media in which bankruptcy information is subject to publication, on the basis of a court decision at the expense of the person who carried out this accounting at the time of loss of records certifying rights to uncertificated securities .
2. Records on the registration of rights to uncertificated securities are not valid from the moment when the person recording the rights lost the records until the day the court decision on restoring the data on the registration of rights enters into legal force.
A security represents a document confirming property rights and is a physical object. The concept of uncertificated securities implies information on the ownership of part of the capital displayed in the register.
What are financial instruments?
Financial instruments are objects of law with which transactions are carried out. For them in the domestic Civil Code there is an explanatory definition:
Uncertificated shares
In 2014, the Civil Code defined so-called uncertificated shares. By law, any financial instruments have a number of characteristic features:
It is noteworthy that until 2014, uncertificated securities did not have their own concept. In the legislation of the Russian Federation they were defined as a paper document. The civil code of our country was loyal to the existence of electronic commerce and even regulated it, but a number of countries still did not recognize such tools as existing assets. This happened because the main feature of a particular share or bond was recognized as a documentary form.
Division into types
Due to the fact that uncertificated securities do not tend to have a material embodiment, they cannot be transferred to the holder and cannot be provided to the issuer. It follows that bearer shares and bonds should be issued as tangible instruments. Only order-based and registered financial instruments can do without a physical basis. Certain types are used in our country's circulation.
Registered shares
Registered shares are uncertificated securities that are part of capital, which are usually sold to a specific person or company. The owner's initials appear directly on the shares and in the accounting registers. By endorsement, the rights of existing property are transferred. Registered shares are considered indivisible. In some cases, trading in such assets without a decision from the issuer is prohibited. What other non-documentary form of securities exists?
Investment units
Investment shares are documents that indicate ownership of part of the property of the Mutual Investment Fund. Any information about the amount is on the certificate forms or in the register. They can be transferred using an endorsement.
Registered bonds
These uncertificated securities are debt obligations of the issuer to any person whose name appears on the document or is recorded in the register.
IOUs
Debt receipts or bills of exchange whose owner is listed in the register are prohibited from being transferred to third parties. An exception is the procedure for applying the assignment of rights.
The electronic form cannot be applied to all order and registered assets. Registered deposits and checks are types of instruments that cannot be used for free trading. Thanks to this, there is no need to put them up for sale in electronic format. 
Mortgages are also registered documents, but according to existing laws only their paper form is allowed. There have been ongoing disputes for several years, thanks to which it is likely that the mortgage will be approved electronically in the near future.
This is what a registered uncertificated security is.
Derivatives are also considered assets. These instruments are allowed for sale in the same way as others, but the object of rights in such situations are exclusively shares. Derivatives are traded electronically throughout the world. This is considered one of the fastest and most expedient types of transactions.
Secondary securities and derivatives include options and depositary receipts. They exist to transfer rights that arise from primary bonds and shares. Electronic trading is used to achieve security and speed of transactions, as well as to further simplify the procedure and comfort.
Transactions with uncertificated securities
Securities issued electronically are usually included in the register, and the decision on their issue is made in the manner prescribed by law. The issuer is responsible for securing the asset; this is always indicated in the decision to issue. The rights of the securities holder are recorded in the owner's securities account.
The method of accounting for uncertificated shares is identical to the method of registering documentary information. Since the entry in the custody account and register is the only evidence that the holder can assert his rights, the accounting process is subject to strict requirements. 
In 2013, the responsibility for compiling securities registers was transferred to third-party organizations; issuers, in turn, were exempted from this need. Any activity of registrars requires licensing; they are also responsible for maintaining data and accuracy. Conducting a transaction with financial instruments that do not have a documentary form involves a system of entering new information data into the register.
The registers must include the following details:
- Issuer details;
- name of the asset;
- rights, content and denomination;
- validity;
- information about the issuer;
- serial numbers;
- signatures of authorized persons.
Any actions with assets that do not have paper media can only be carried out using electronic trading. To carry out a transaction, an electronic signature is required, which serves as proof of the owner’s identity. Certification services throughout the country are engaged in issuing electronic digital signatures. The form and procedure for the holder's participation in the auction are prescribed and determined by the legislation of the Russian Federation. What else does the concept mean? book-entry security?
Encumbrance as a prohibition on the disposal of one's property
Any restrictions placed on uncertificated securities must be entered into the register by an authorized person. In accordance with the law, they can be initiated by the holder himself or can be independently appointed by regulatory authorities. Encumbrance means depriving the owner of the right to dispose of his property. 
In situations with securities, this can lead to a ban on conducting transactions with a number of any assets, as well as to the absolute blocking of the holder's account. Types of encumbrances can be:
- partial restriction on operations, which is initiated by the owner himself;
- arrest;
- foreclosure;
- pledge.
In cases where a ban on the disposal of one’s property arises on the initiative of the holder himself, he is required to provide the registrar with written permission. Foreclosure can be initiated by authorized bodies, namely courts of all levels. At the initiative of the holder, information about the encumbrance in the form of a pledge is required.
In cases where the owner of the assets did not take care to change the information, the person against whom the encumbrance was established has every right to go to court. A court order imposing restrictions will order the registrar to enter this information into the register.
Any information about all transactions with uncertificated securities is kept by the registrar. In cases of loss of such information, any rights that the holders had are recognized as invalid until the accounting information is restored and the court confirms its true accuracy. 
The history of the securities market in Russia has repeatedly indicated that the reliability of an asset does not at all depend on the form of financial instruments. Documentary or uncertificated securities contain all information required by law. And this provides a guarantee for the implementation of the holder’s rights according to the type of his financial document. Profitability and reliability are determined based on financial analysis data and are absolutely independent of the form of trading.
We looked at documentary and uncertificated securities.
To determine the legal regime of various securities, their division into “documentary” and “uncertificated” is of great importance.
In the modern legal doctrine of securities, perhaps, there is no more controversial issue than the question of the legal regime of uncertificated securities.
The controversial nature of their design is largely due to the fact that this is a new phenomenon for Russian legal doctrine. However, the main problem was the lack of protective regulations for such securities.
As a result, the decisions of courts in different regions and at different levels differed completely in terms of their motivation. The problem of theft of uncertificated securities and the lack of unity of judicial practice on the issue of protecting their owners became so serious that decisions were made by the highest courts in the absence of legal norms. Their decision was predictable and consisted of choosing the best from the worst. Dobrovolsky V. On the practical value of the discussion on the issue of vindication of shares // Shareholder Bulletin. 2007. No. 8 (46). P. 31: the courts recognized the possibility of vindication of such securities; they recognized that such instruments are full-fledged papers, things in the sense of the Civil Code Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 5, 2006. No. 4375/06 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006. No. 12.
In this sense, it should be noted that at the moment the issue of the legal regime of uncertificated securities can be considered closed: from the point of view of judicial practice, these are securities, things to which the appropriate legal regime applies, including specific proprietary methods of protecting Gabov A.V. Securities issues of theory and legal regulation of the market. M.: Statute. 2011. P. 189.
However, questions remain open about the legal nature of this institution, its place in the system of objects of civil rights, as well as a number of other related ones.
A book-entry security means obligations and other rights enshrined in the decision on the issue or other act of the person who issued or issued securities in accordance with the requirements of the law, the implementation and transfer of which is possible only in compliance with special rules for accounting for these rights Information and legal portal ConsultantPlus: Legal news [Electronic resource] Special issue “Commentary on the draft amendments to the Civil Code of the Russian Federation” (Draft No. 47538-6/3) - Access mode: http://base.consultant.ru/cons/cgi/online.cgi?req =doc;base=LAW;n=142288 - free (Clause 1 of Article 142 of the Civil Code of the Russian Federation as amended by the Draft).
In accordance with the current version of Art. 149 of the Civil Code of the Russian Federation, a book-entry security is understood as a special method of recording rights. Definition from clause 2 of Art. 142 of the Civil Code of the Russian Federation as amended by the Draft is consistent with the concept of equity securities given in Art. 2 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market” Federal Law “On the Securities Market” of April 25, 1996 No. 79 (as amended on December 29, 2012) // Collection of Legislation of the Russian Federation. 1996. No. 17 art. 1918 - Art. 2.
Art. 142 Civil Code of the Civil Code of the Russian Federation (part one) dated November 30, 1994 No. 51-F3 (as amended on February 11, 2013) (as amended and additionally entered into force on March 1, 2013) // Collection of legislation of the Russian Federation. 1994. No. 32. Art. 3301 - Art. 142 enshrines the classical model of a security, in which a certain amount of subjective civil rights is individualized by indicating its existence in one document. This document is given the property of presentation, which means that the exercise of the relevant rights without presenting the document to the debtor is impossible. Moreover, this “materialization” of rights made it possible to extend the property regime to them, which, in turn, determined the specificity of the legal regime of a security and the possibility of using (albeit in a limited form) proprietary methods of protection. In general, the result is a convenient and functional tool for civil circulation.
There is nothing like this in an uncertificated security. The rights that it secures are recorded in the accounts of organizations in the accounting system (custody account in the depository, specialized depository and personal account of the registrar). Without contacting the person who keeps records of rights, it is impossible to perform any actions with securities. Thus, the “thing” itself is not in the direct possession of the owner - he has administrative power in relation to it, but does not exercise physical possession, the very property management of such an owner is limited by the need for mediation on the part of the organization of the accounting system, which is also built on the model of obligation .
A book-entry security cannot be presented for execution or “presented”, since the security itself in the form of a separate document that individualizes a set of rights simply does not exist.
In classical securities, the principles of fulfillment of an obligation are “tuned” to the specific design of the security: the creditor is looking for the debtor to present (present) the security. The legal structure of uncertificated securities “returns” everything to its original position: the debtor ensures that creditors can obtain execution on the security (Article 316 of the Civil Code). It is the debtor’s responsibility to send to the relevant organization of the accounting system a request to compile a list of persons (register) for fulfilling obligations under the security. For example, a mortgage participation certificate secures such a right as receiving (accepting) payments on obligations, the requirements for which constitute mortgage coverage, or payments on mortgage participation certificates included in the mortgage coverage." In accordance with Article 18 of the Federal Law "On Mortgage securities" Federal Law "On Mortgage Securities" dated November 11, 2003 No. 234 (as amended on December 29, 2012) // Collection of Legislation of the Russian Federation. 2003. No. 46 (Part 2) Article 4448 - Article 18 is the right is implemented by the actions of the trustee of the mortgage coverage, who carries out trust management by receiving (accepting) payments for obligations, the requirements for which constitute the mortgage coverage and transferring (payments) to the owners of mortgage participation certificates of funds at the expense of these payments. This right arises by virtue of the inclusion of the owner of the mortgage certificate of participation in the list of owners of mortgage certificates of participation, compiled by the registrar on the date determined by the rules of trust management of each month. An even more rewarding example to illustrate this thesis is a share, since the legislation on joint stock companies connects the emergence of a large number of shareholder rights with being included in the corresponding list compiled by the registrar on the basis of instructions from the issuer - the joint stock company: exercise of preemptive rights, payment of dividends, right of presentation for redemption and a number of other rights.
In the design of uncertificated securities proposed in Art. 149 of the Civil Code, the legislator did not resolve the important issue of fixing the rights certified by such papers. The Code contains only provisions that a person with a special legal status “fixes the rights” secured by a security, as well as a reference rule stating that the rights certified by such fixation, the procedure for officially recording rights and rights holders, the procedure for documentary confirmation records and the procedure for performing transactions with uncertificated securities are determined by law or in the manner established by it.
The provisions of the Civil Code are mainly “oriented” towards the owner of the security. The article fixes two fundamental points:
- 1) the law can designate the types of rights that will be subject to such registration (i.e. indicate that “rights certified by such and such paper” will be recorded in the manner established by Article 149 of the Civil Code);
- 2) for participants in civil transactions, such a fixation will (should) have legal significance. We are talking about the subjective civil rights of a particular person, and not about the description of subjective civil rights as the content of a paper.
The Code does not answer the question: is such a fixation also a description of the rights that the paper certifies? Let's pose the question from a practical point of view: where can a potential acquirer (investor) go to find out about such rights before purchasing them? The Civil Code does not answer this question.
In addition to the fact that uncertificated securities are recognized as fiction, there are three essential elements of the legal regime of uncertificated securities:
- 1) mandatory accounting of rights (not electronic document flow, but namely accounting of rights - the difference is that in one case technical means are used to imitate real signatures, and in the other - we are talking about the fact that without making receipts/expenses entries (which are made by special subject - organization of an accounting system) the right will not cease and will not arise);
- 2) lack of presentation (the beginning of the presentation) and, as a consequence,
- 3) direct correlation of the ability to have rights from paper with being included in the corresponding list (register) of paper owners, which is compiled by the obligated person himself (or on his behalf by an organization of the accounting system).
The legal regime of documentary securities is also contradictory, as is the considered legal regime of uncertificated securities.
According to the Project, a documentary security is a document that meets the statutory requirements, certifying obligations and other rights, the exercise or transfer of which is possible only upon presentation (clause 1 of Article 142 of the Civil Code of the Russian Federation as amended by the Project).
In paragraph 2 of Art. 143.1 of the Civil Code of the Russian Federation, as amended by the Draft, established the general consequences of violating the requirements for the form and details of a security. The Concept for the Development of Civil Legislation of the Russian Federation stated that such securities should not be recognized as void, since the consequences of the nullity of securities are not established by law.
The Project proposes not to recognize securities that have such violations as securities, but to consider them as having the force of evidence of the existence of the right certified by them Information and legal portal ConsultantPlus: Legal news [Electronic resource] Special issue “Commentary on the draft amendments to the Civil Code of the Russian Federation” ( Bill No. 47538-6/3) - Access mode: http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW;n=142288 - free.
As noted in the classical literature on securities, M. M. Agarkov. The doctrine of securities. M.: Finstatinform, 1993. pp. 25-30., the main difference between the transfer of rights under securities and the general civil methods of transfer of rights is a different distribution of risks in the performance of obligations. Thus, the fulfillment of an obligation from a security must be attributed to the person formally legitimized in it. As a general rule, the debtor (issuer or other obligated person) is not responsible for the transfer of rights under a security to another creditor.
When analyzing regulations, a more or less stable element of the legal regime can be designated as “the mandatory presence of a paper certificate - a “bearer” of rights, to which certain requirements are imposed.” All other elements do not lend themselves to any unambiguous qualification.
The law requires a certificate. It is noted that these certificates are not securities in themselves; they are only material carriers of the rights that the security itself grants to the owner.
Requirements have been established for the certificate itself, mainly for the content, and not for the form (technical characteristics). In particular, the certificate of an issue-grade security must contain certain mandatory details, the list of which is not closed, since it is stated that the certificate may also contain “other details provided for by the legislation of the Russian Federation for a specific type of issue-grade securities.”
The requirement for a certificate to be mandatory presupposes that such a certificate:
- 1) individualizes the right;
- 2) necessary for presentation;
- 3) performing actions with such a certificate is a mandatory condition for the alienation of a security.
The thesis about the meaning of a certificate as a document that describes (individualizes) rights (a set of rights) is “collapsed” by the fact that for issue-grade bearer securities, not only the certificate, but also the decision to issue the Federal Law “On the Market” is recognized as a document that describes the rights securities" dated April 25, 1996 No. 79 (as amended on December 29, 2012) // Collection of Legislation of the Russian Federation. 1996. No. 17 art. 1918 - Art. 18. On the one hand, there are no problems here, since the Law established the primacy of the content of the certificate. However, for classic documentary securities, the correctness of the security’s execution plays an extremely important role. Since failure to indicate the necessary details, as well as their incorrect indication or incorrect execution, can lead to fatal consequences - the document will not be recognized as a security. An example of such a formality is a bill and a check. But what about issuing a certificate, for example, a bearer bond? As indicated by the Standards for the Issue of Securities, Standards for the Issue of Securities and Registration of Securities Prospects, approved by order of the Federal Financial Markets Service of Russia dated January 25, 2007. No. 07-4/pz-n (as amended on July 20, 2012) // Bulletin of normative acts of federal executive authorities. No. 25. 06/18/2007, in the case of placing documentary bearer bonds, a sample or description of the bond certificate is included among the documents for state registration. The procedure for issuing certificates itself is part of the stage of placing such securities. Ibid. - clause 2.5.1.. But if the certificate does not contain the necessary details, then what is the legal qualification of the relationship between the issuer and the owner of the paper? The law does not answer this question as a general rule. The only norm that speaks about this are the provisions enshrined in the Decree of the President of the Russian Federation Decree of the President of the Russian Federation dated June 10, 1994 No. 1182 “On the issuance and circulation of housing certificates” (as amended on August 24, 2004) // Collection of Legislation of the Russian Federation. 1994. No. 7. art. 694 regarding housing certificates, stating that the absence of any mandatory details of such a document makes it invalid.
The need for presentation of the certificate is also highly controversial. On the one hand, such a situation may well occur. On the other hand, the legislation on the securities market makes it possible not to adhere to the principle: one certificate - one individualized right (set of rights). It allows you to issue a certificate for several papers at the same time. Yes, Art. 16 of the Federal Law “On the Securities Market” specifically states that for each issue-grade bearer security, its owner is issued a certificate, but at the owner’s request, one certificate can be issued for two or more issue-grade bearer securities of the same issue purchased by him. Moreover, in accordance with the same article, a global certificate can be issued for all securities of the issue. As a general rule, such an attack certificate never leaves the walls of the depository, i.e. the owner does not have anything in his hands, although there are exceptions.
A bearer certificate of issue-grade securities with mandatory centralized storage cannot be issued to the owner(s) of such securities.
In accordance with Art. 29 of the Federal Law “On the Securities Market”, in the case of storage of certificates of documentary securities in depositories, the rights secured by the securities are exercised on the basis of the certificates presented by these depositories on instructions provided by the depository agreements of the owners, with a list of these owners attached. In this case, the issuer ensures the exercise of rights under bearer securities of the person indicated in this list.
It turns out that in this case, not a trace will remain of all the “documentary” nature of such papers - the procedure for exercising rights under them will be the same as for undocumented papers. The law is logically contradictory, because if execution is carried out on the basis of a list, then why present certificates?
Let's consider the value of the certificate for the transfer of papers. In accordance with Art. 29 of the Federal Law "On the Securities Market" the right to a bearer documentary security passes to the acquirer if its certificate is found by the owner - at the time of transfer of this certificate to the acquirer; in the case of storing certificates of bearer documentary securities and/or recording rights to such securities in the depository - at the time of making a credit entry to the acquirer's securities account. With the last case, it is especially interesting if the certificate is global - there is certainly no need to re-issue anything.
The considered legal regime shows that we have a transitional structure from classical securities to undocumented (dematerialized) ones. Real practice confirms its relevance, but in its complete version - mandatory centralized storage; This regime is no different from the legal regime of uncertificated securities.
The legal regime of documentary and uncertificated securities is incomplete. A reconstruction of the entire legal regime is required, because in itself it is important. The spread of the corresponding legal regime will mean very specific legal consequences both for the fixation of rights and for their implementation and protection. It seems that any emission or “emission-like” (shares) securities should only be uncertificated. On the contrary, documentation is the lot of classical securities, for which the carrier is closely connected with the law Baksheev Yu. Blank bill: features of the legal regime // Economy and Law. 2007. N 12. P. 45-47. For such a security, its presentation is a necessary condition for the exercise of rights Karabanov K. The concept of a security in modern Russian law // Economy and Law. 2006. N 9. P. 31 - 32.
Documentary security(documentary security) – a document drawn up on paper, certifying, in compliance with the established form and mandatory details, property rights, the exercise and transfer of which are possible only upon presentation. Classic documentary:
- to bearer;
One security of a documentary form of issue can be certified by only one certificate. One certificate can certify one, several or all securities with one state registration number.
A certificated security may be in the hands of its owner (in which case, ownership of it passes to the new owner along with its transfer) or transferred by him for safekeeping (in this case, ownership of it passes to the new owner at the time of transfer across securities accounts in the depository).
The scope of rights secured by a documentary security is indicated in the decision on their issue and in the text of the certificate. In case of discrepancies between the text of the decision on the issue of securities and the data given in the certificate of the issue security, the owner may demand the exercise of the rights secured by this security to the extent established by the certificate.
The issuer of a certificated security fulfills its obligations under it in favor of the person who presents the security certificate. When a certificated security is in the depositary, the issuer's obligations are fulfilled in favor of the person whose name will be indicated by the depository to the issuer.
Until the 2nd half of the 20th century. A certificated security was the only form of security. With the development of modern computer and accounting technologies, equity securities began to be issued and recorded through accounting entries in a register system or in depositories.
When issuing registered state and municipal securities in documentary form with mandatory centralized storage (documentary security with mandatory centralized storage), the name of the depositary is indicated in the global certificate.
