1.4. The concept of securities and the requirements imposed on them
To date, there is no single approach to the concept of "security" neither in domestic, nor in foreign literature, as well as in legislative acts. To the definition of the category security lawyers and economists are different. So, in Art. 142 of the Civil Code of the United States of America (hereinafter referred to as the Civil Code of the United States) is given a legal definition of the security: a security document is a document certifying, in compliance with the established form and mandatory requisites, property rights, the implementation and transfer of which are possible only with its presentation .
Based on this definition, the security must have the following properties:
o to have the established form and obligatory requisites;
o certify property rights;
o only when presenting the original document is a means of exercising or transferring property rights.
A security is neither money nor material resources. It has its value, expressed in money, and its value is determined by the rights it gives its owner - the holder of the security. An investor exchanges his available free cash or material resources for a security only if he is sure that it is better, more convenient than the money or the goods themselves.
A security is a form of fixing (recording) market relations between market participants, which itself is the object of these relations. This means that the conclusion of a transaction or agreement between the parties consists in transferring or buying and selling securities in exchange for money or goods.
In the Law "On the Securities Market" the following definition of a security is given: an issue security is any security, including a non-documentary one, which is characterized by simultaneously such mandatory characteristics:
o secures the aggregate of property and non-property rights subject to certification, assignment and unconditional exercise, subject to the form and order established by this Federal Law;
o is placed by issues, has equal volume and terms of exercising rights within one issue, regardless of the time of purchase of the security.
Such a notion of an issuing security is consistent with its definition given in US law. According to the United States Uniform Code of Trade, these are securities issued in series to attract money capital, i.e. shares, bonds, government debt instruments and derivatives derived from them (classical options, warrants, subscription rights, etc.).
Since money and commodities have different forms of capital existence in modern conditions, from economic point of view a security is a form of existence of capital, different from its commodity, productive and monetary form, which can to be transferred instead of himself, to treat the market as a commodity and to generate revenue. "
The owner of the security no longer has the capital itself, but has on this capital all rights fixed in the form of a security. At the same time, all rights, obligations and relations to the new owner are transferred by fixing them in a special register. Fixing rights is carried out with the help of paper carriers or computer records, therefore the form of the issue of securities can be both documentary and uncertificated.
The distinctive features of securities are as follows:
o for the certification of rights, their presentation is required;
o Partial transfer of rights is not allowed;
o normative acts regulate the issue and circulation of securities of each type, establish the scope of rights certified by a specific security, as well as requisites and requirements for its form.
Thus, the document becomes a security only after it is endowed with the necessary requisites and presented in the appropriate form. Otherwise, the security will not have the proper status and becomes void.
The security , the name of the owner of which is fixed on the form and (or) in its register of owners, drawn up in ordinary documentary and (or) documentless forms, is called nominal.
A security whose owner's name is not fixed directly on her own, and her appeal does not need any registration, is called a bearer.
In the stock market of securities today, nominal securities prevail, as:
o their owner is always known;
o all operations with securities must be registered, registered, therefore, they are available for taxation.
However, the bearer security can under certain conditions be transformed into a nominal one: at the moment of concluding a relevant contract with the bank, their owner must be fixed. From the point of view of legal relations in this particular case, the bearer security becomes a nominal one.
The paperless form is also its paperless form, since it is registered in electronic memory with a specific legal or natural person.
To securities , which have the corresponding legal rights , the following requirements :
1) handling - the ability of a security to act on the stock market as a subject of sale (shares, bonds, certificates, options, futures);
2) documentary - the presence of the requisites established by law; the absence of at least one of them entails the invalidity of the security (its insignificance);
3) standard and seriality - the issue of securities in mostly homogeneous series and groups, which makes them a mass and homogeneous commodity on the securities market. The security should have a standard content (the form of the parties to the transaction, the validity period, repayment terms, etc.);
4) accessibility for civil turnover - the ability to be an object for civil transactions: loan, storage, pledge, donation, inheritance
5) state control and recognition - the state should regulate the securities market, protect the interests of investors, granting them equal rights; support public confidence in the securities industry;
6) marketability - as a special type of product they must have their own market with its own rules of operation;
7) liquidity - the ability to convert a security into cash or other tangible assets without significant losses to sellers;
8) riskiness : a) the risk of loss of investment, non-receipt of full return from them, depreciation of investments; b) or the sequence of risk levels of different types of securities;
9) licensing - permission of state bodies (the Federal Service for Financial Markets) to carry out certain types of activities with securities on the securities market, both in documentary and non-documentary forms.
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