Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido el 12/06/2021 Aceptado el 14/08/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
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Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 70 (2021), 570-585
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Shares as an object of civil law regulation
DOI: https://doi.org/10.46398/cuestpol.3970.33
Yury Alexandrovich Svirin *
Eduard Eduardovich Artyukhov **
Igor Mikhaylovich Divin ***
Badma Vladimirovich Sangadzhiev ****
Vladislav Petrovich Sorokin *****
Abstract
The objective of the article was to analyze the actions as an
object of civil law regulation. The market contributes to the
accumulation of capital and its transformation into investment
resources for the nancing of the productive and social spheres,
which improves the general well-being of the population.
Meanwhile, the legal nature of the shares has not yet been clearly
dened in Russian law and there is, consequently, a dichotomy in
the choice of ways to protect the owners of securities, including
shares. For the development of the research, methods such as synthesis,
theoretical analysis, abstraction, deduction, induction, classication,
comparative law, refutation were used. Based on the legal acts that regulate
the stock market, a comprehensive study of the problems of legal regulation
of the rotation of shares is carried out, to determine the prospects for
development and ways to improve the legal regulation of shares, as well as
to look for ways to protect the rights of securities holders. Among the most
signicant results, the legal nature of the action was revealed, the meaning
of categories such as: document, security and action was cleared, and the
denition of action was formulated.
Keywords: securities document; security; cuota; undocumented
participation; method of protection.
* Financial University under the Government of the Russian Federation, Moscow, Russia; All-Russian
State University of Justice (RPA of the Ministry of Justice of Russia), Moscow, Russia. ORCID ID:
https://orcid.org/0000-0001-7616-2637. Email: yury.svirin@bk.ru
** First Deputy of the Prosecutor of Saint Petersburg, Saint Petersburg, Russia. ORCID ID: https://orcid.
org/0000-0002-7977-1515. Email: artyukhov.eduard@bk.ru
*** Federal Judge of the Arbitration Court of the Republic of Adygea, Russia. ORCID ID: https://orcid.
org/0000-0002-3454-3551. Email: divinigor@mail.ru
**** Peoples’ Friendship University of Russia (RUDN University), Moscow, Russia. ORCID ID: https://
orcid.org/0000-0001-8317-0117. Email: sangadzhiev-bv@rudn.ru
***** Academy of Labor and Social Relations, Moscow, Russia. ORCID ID: https://orcid.org/0000-0002-
0279-9907. Email: vladislav.p.sorokin@mail.ru
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CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 570-585
Acciones como objeto de regulación de derecho civil
Resumen
El objetivo del artículo fue analizar las acciones como objeto de
regulación de derecho civil. El mercado contribuye a la acumulación de
capital y su transformación en recursos de inversión para el nanciamiento
de las esferas productiva y social, lo que mejora el bienestar general de la
población. Mientras tanto, la naturaleza legal de las acciones aún no se ha
denido claramente en la legislación rusa y existe, en consecuencia, una
dicotomía en la elección de formas de proteger a los propietarios de valores,
incluidas las acciones. Para el desarrollo de la investigación se utilizaron
métodos como síntesis, análisis teórico, abstracción, deducción, inducción,
clasicación, derecho comparado, refutación. A partir del examen de los
actos jurídicos que regulan el mercado de valores se realiza un estudio
integral de los problemas de regulación legal de la rotación de acciones,
para determinar las perspectivas de desarrollo y las formas de mejorar la
regulación legal de las acciones, así como buscar formas de proteger los
derechos de los titulares de valores. Entre los resultados más signicativos,
se reveló la naturaleza legal de la acción, se clarico el signicado de
categorías tales como: documento, seguridad y acción y se formuló la
denición de acción.
Palabras Clave: documento de valores; seguridad; cuota; participación
indocumentada; método de protección.
Introduction
There is a rather complex structure of objects of civil rights in various
legal systems, and Russia is no exception, where the attention of researchers
is drawn to the study of certain objects and rights to them, because there are
signicant dierences in the ownership of corporal and incorporeal things,
in the rights to objects that cannot belong to persons on the property right.
This applies not only to the controversial construction of «right to right»,
the possibility for a person to be the owner of property rights, but also to be
the owner of objects of the natural environment.
The concept of property in the legal doctrine is always associated with
the possibility of individualizing property and transferring it to the exclusive
right of ownership to a person, organization, or society. Therefore, space,
celestial bodies, and atmospheric air are not considered by legal scholars as
property that can be the object of property rights and other rights regulated
by civil law. However, the possibilities of «legalizing» individual objects
of nature will constantly expand with the development of science and
technology.
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Yury Alexandrovich Svirin, Eduard Eduardovich Artyukhov, Igor Mikhaylovich Divin, Badma
Vladimirovich Sangadzhiev y Vladislav Petrovich Sorokin
Shares as an object of civil law regulation
In science, issues concerning property rights are debatable, in terms of
their understanding as a subjective right or the object of the right itself.
Therewith, they can act both as an element of the content of the legal
relationship, and as its object. Therefore, the diculty lies in the fact that
often transactions are concluded concerning property rights that are the
content of legal relations (for example, the right to lease). In other words,
there is a substitution of concepts that determine their essential belonging
to various elements of legal relations.
Attempts to present a document as an object of law in the doctrine are
interesting. A well-known discussion about securities takes place not only
in Russian but also in foreign doctrine. Without touching upon the issue
of uncertied securities, we note that in any case, the boon means those
rights that are certied by securities. It is for their sake that the person
acquires them. Then there are relevant questions about what is the object –
the rights themselves or the security?
The concept of the object of law is blurred with the emergence of such
very specic objects as machine-place, exchange place, bioresources, human
organs, etc. The attitude in the doctrine to human organs, anatomical
materials, and tissues, which, as is known, can be acquired and used in
one way or another (for transplantation and other medical or cosmetic
purposes), is very ambiguous. The doctrine also raises the question of the
attribution of human cells to the objects of civil rights (legal relations) and,
consequently, the recognition of their legitimate turnover. If until recently
such cells were considered exclusively an integral part of the human body,
without which they perished, then the situation is gradually changing with
the development of medical science, for example, during the collection,
storage, and use of blood and its components (plasma, erythrocytes,
platelets, etc.); withdrawal and use of stem cells. Currently, embryonic,
reproductive, and somatic cells are widely used. Today, tissue is grown from
the cell, for example, skin tissue, which is used for human skin grafting.
Hence, in civil language, «the making of one thing into another thing»
comes. Due to the demand (in medicine), they cannot but be considered
a good, since they are often called upon to save a life, which in itself is the
highest good.
It is possible to give the opposite example when there is a turnover of
objects, but it is impossible to determine which one, for example, in the
case of the so-called «acquisition of an athlete» by a sports club. Usually,
they prefer to talk about the services provided by the athlete and the
ability to assign him/her from one club to another. However, such a legal
construction is far-fetched and is intended to avoid understanding the
athlete (person) as an object, since he/she, being a person, is a subject, and
not an object of the law. Thus, in these cases, the establishment of a valid
object of law is very problematic.
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It is also worth touching on such objects, which, based on objective,
material positions, are too dicult to isolate from the surrounding
equivalent objects. Conventionally, they are called «meaningless objects»,
an example of which is an apartment. Disputes about who owns the walls,
oors, and, accordingly, ceilings in apartments located next to each other,
and to what extent it is possible to assert the right of one person to these
«contours» of the apartment, and where the right of another person to
them begins. The answers to these questions also require special research.
Thus, the above proves not only the complexity of understanding the
objects of rights, their various types but also makes it dicult to regulate
them, which must be coordinated in a certain way, considering all aspects
of intersectoral science.
1. Methods
In the course of the research, general scientic methods of cognition
were used, including the principle of objectivity and consistency. Private
scientic methods were used along with general scientic methods of
cognition: theoretical analysis and synthesis, comparative law, technical
and legal analysis, concretization, interpretation, deduction and induction,
classication. The methodological basis of the study was the method of the
theory of knowledge.
2. Results
Securities are independent objects of civil rights. Their emergence
is associated with trade turnover when there was a need to facilitate and
accelerate the turnover of certain types of binding rights.
For a long time, security has been primarily understood as a document in
the doctrine that acquires signicance, not in itself, but because it embodies
certain rights (Agarkov, 1994). However, under the inuence of scientic
and technological progress, a paper document, which is necessary for the
circulation of civil rights at the initial stage, fades into the background,
giving way to a document as digital information, which today is a more
convenient tool for the digital economy. Russian legislation classies
securities as things (The Civil Code of the Russian Federation, 1994).
In addition, securities, in particular shares, were considered as movable
things. F. Shershenevich (2003) pointed out that the share expresses the
right to participate in the enterprise, it is always mobility, so the rules on the
turnover of movable things should apply to the share. The share is the most
common type of securities in the modern world, but the epistemological
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Yury Alexandrovich Svirin, Eduard Eduardovich Artyukhov, Igor Mikhaylovich Divin, Badma
Vladimirovich Sangadzhiev y Vladislav Petrovich Sorokin
Shares as an object of civil law regulation
essence of the share caused earlier and today causes controversial points
in the doctrine of law, which can be seen even from the lexicology of one
word– «Action» of French origin means security, and «Actio» of Latin
origin means an order, permission, appointment.
Security and a share are related to each other as general and particular.
A share is security without a specic validity period, which is limited only
by the life of the company itself. The appearance of the share is directly
related to the creation and operation of the joint-stock company.
In Russia, the rst joint-stock companies, and therefore the rst
securities issued by them, appeared in the second half of the 18th century,
that is, much later than in most of the United States and Western European
countries. Historians claim that the rst corporation in Russia was created
in 1757 when the Russian Constantinople Company was established, but the
rst share was issued only in 1827 (Borzykh, 2005). The rapid development
of the joint-stock form of management in Russia occurred only in the 19th
century and is due to the development of capitalist relations. By this time,
scientic works began to appear justifying the advantages of the joint-stock
organizational and legal form. In addition, according to M.V. Chernozhukov
(2001), the foundation of joint-stock companies was facilitated by the
reduction of interest rates on deposits by state credit institutions, which
caused an outow of capital from the credit sector to the sphere of corporate
securities (shares).
The development of joint-stock forms of management in Russia did not
last long, until 1917. The command and administrative principles became
the fundamental principle in the economy in the young Soviet state. In
this connection, joint-stock companies were reorganized into state-owned
enterprises in the late 20s and early 30s, and, unfortunately, such an
organizational and legal form had not been used for a long time on the
territory of the Soviet Union. A new stage in the development of the joint-
stock business in Russia began in the late 90s of the last century.
The emergence of the rst shares in the Soviet Union is associated with
the adoption of the Resolution of the Council of Ministers of the USSR of
October 15, 1988, No. 1195 «On the issue of securities by enterprises and
organizations», in paragraph 1 of which it was xed that
(…) enterprises and organizations transferred to full economic accounting and
self-nancing following the Law of the USSR on State Enterprise (Association),
can issue two types of shares: 1) shares of the labor collective distributed among
the members of their collective; 2) shares of enterprises (organizations) distributed
among other enterprises and organizations, voluntary societies, banks, as well as
cooperative enterprises and organizations (Resolution of the Council of Ministers
of the USSR, 1988: 56).
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Shares of enterprises could also be issued by commercial banks.
However, the above-mentioned resolution was limited only to listing the
types of shares and did not contain a denition of the term «share». This
denition was later xed by the Resolution of the Council of Ministers of the
USSR (June 19, 1990) No. 590 «On Approval of the Regulations on Joint-
Stock Companies and Limited Liability Companies and the Regulations on
Securities». In paragraph 31 of the Regulations on Joint-Stock Companies
and Limited Liability Companies, it was noted that a share is security and
secures a triad of rights, i.e., a share is security conrming: the right of a
shareholder to participate in the management of the company, in its prots
and the distribution of the remaining assets in the event of the company’s
liquidation. The disadvantage of the above-mentioned resolutions was
that they provided for the possibility of issuing shares not only by joint-
stock companies but also by other enterprises and organizations, including
cooperatives, which does not correspond to the semantic essence of the
share.
A more correct denition of the share was given later in the law «On
the Securities Market» (Federal Law of the Russian Federation, 1996). It
was noted in part 1 of Article 4 of the law, that a share is a security without
a xed circulation period, certifying equity participation in the authorized
fund of a joint-stock company, which conrms membership in a joint-
stock company and the right to participate in its management, entitles its
owner to receive part of the prot in the form of a dividend, as well as to
participate in the distribution of property in the event of liquidation of a
joint-stock company. Although such a denition consolidated the classical
triad of rights to shares (the right to receive dividends, to participate in
the management of the joint-stock company, and to part of the property
remaining after its liquidation), the main drawback was that the legislator
clearly distinguished the right of membership from the triad of rights,
which contradicts the civil law doctrine, according to which the right of
membership is just a set of rights for a share.
This raises two relevant questions: what the legal nature of a share as
a special type of security is, and what is the ratio of a share to security.
The theory of securities, including shares, has been developed by civilized
doctrine for several centuries. A. Shershenevich (2003) rightly argued that
the very concept of securities is not claried either in life, or in science, or
legislation.
The ocial denition of the term «security» is xed in part 1 of Article
142 of the Civil Code of the Russian Federation, according to which
«Securities are documents which meet the requirements established by law
and certify the rights under the law of obligations and other rights which
may be exercised or assigned only upon the show of such documents (paper
securities). Also, the following are deemed securities: the rights under the
576
Yury Alexandrovich Svirin, Eduard Eduardovich Artyukhov, Igor Mikhaylovich Divin, Badma
Vladimirovich Sangadzhiev y Vladislav Petrovich Sorokin
Shares as an object of civil law regulation
law of obligations and other rights which are stated in the decision on the
issue or in another document of the person that has issued the securities
following the provisions of a law and which may be exercised and assigned
only if the rules for keeping a record of these rights according to Article 149
of the present Code are observed (paperless securities).
It should be noted that such regulation of the registration of rights and
turnover of non-documentary securities is more perfect than that which
was in force before the adoption of amendments to the Civil Code of the
Russian Federation, where it was noted that «security is a document
certifying, in compliance with the established form and mandatory details,
property rights, the exercise or transfer of which is possible only upon its
presentation. With the transfer of a security, all the rights certied by it
are transferred in the aggregate» (Federal Law of the Russian Federation,
2013). However, it seems to us that the new denition of security has some
drawbacks. Namely, the legislator indicates that a security is a document
certifying a monetary or another property right.
This disposition makes the denition of security too narrow and does
not fully cover the content of the share. This conclusion follows from the
analysis of the concept of a share, which is contained in Article 2 of the Law
of April 22, 1996, No. 39-FZ «On the Securities Market», which states that a
share is «issue security that secures the rights of its owner (shareholder) to
receive part of the prot of a joint-stock company in the form of dividends,
to participate in the management of a joint-stock company and to part of
the property remaining after its liquidation.
As a result of the conducted research, it should be concluded that
the share grants its owner not only property rights but also several non-
property rights. Therewith, with the undeveloped stock market in Russia,
the interests of shareholders are usually not aimed at making a prot from
shares at the expense of the stock exchange speculation but are reduced
only to the ability to inuence the work of the bodies of the joint-stock
company. Therefore, it can be concluded that the non-property rights of the
shareholder become the main ones. A.S. Shvydenko (2006) also points to
the unsuccessful wording of the legally enshrined term «share», since from
his analysis it is impossible to unequivocally assert what the property and
non-property rights to the share are certied by.
According to the current positive law of Russia, a share should be
considered both a unit of measurement of the authorized capital of a joint-
stock company and a document that has a close legal relationship with the
right (property and non-property) enshrined in it. Such a dichotomy of the
essence of the share is rather a disadvantage of the legislative technique
than its advantage.
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A share as a type of security belongs to equity securities and it is
characterized by all the features inherent in equity securities, but there
are also exceptional features. Following part 1 of Article 25 of the law on
joint-stock companies, all shares of one enterprise must have the same
nominal value, and other equity securities must have an equal number of
rights only within one issue. In addition, the share is corporate security,
since it provides a set of rights to the owner: the right of membership in the
company, from which
(…) both property rights (the right to participate in prots and, upon the
termination of the company, to share in the liquidation balance) and non-property
rights of the shareholder (the right to participate in the general meeting, active and
passive voting rights to hold positions in the company, the right to get acquainted
with accounting and reporting data and other documentation of the joint-stock
company) (Krasheninnikov, 1995: 54).
There is a pluralism of opinions in the Russian scientic literature on the
denition of the main characteristics of securities, including shares. S.A.
Mikhaltsov (2006) draws attention to the fact that a number of the features
cited by scholars do not express the legal nature of the share, but only make
it possible to reveal the economic essence of securities more deeply. Indeed,
such characteristics as the «marketability» of the share or «liquidity»
(Galanov et al., 2017) do not in any way aect their legal regulation, since
regardless of whether the share is liquid or not, it is subject to the same
legal norms.
In this connection, it is necessary to analyze only those features of the
share as a type of security that express its legal nature, with the acquisition
of which the share becomes a full-edged object of civil turnover. The
peculiarity of the share is that it is the largest among all securities that carry
regulatory functions in the system of social reproduction. It is the share
that maximizes the ow of capital into promising and steadily developing
sectors of the economy from withering industries.
Such a construction as non-documentary security is used in the Russian
scientic literature when disclosing the question of the civil nature of a
share. This justies the need to conduct a legal analysis of the essence of
the security as an «undocumented one».
The analysis has shown that researchers currently lack a unied
approach to understanding the legal nature of undocumented securities.
Thus V.A. Belov (2001: 14) pointed out that “securities as objects of
civil rights can only be understood as documents, but not the subjective
civil rights enshrined in them». D.V. Murzin (2001) noted that the form of
the «issue» can be considered another institution of civil law that does not
coincide with securities. E.A. Sukhanov (1997) wrote that the undocumented
form (in the form of a record in a computer) is not a security, but a method
578
Yury Alexandrovich Svirin, Eduard Eduardovich Artyukhov, Igor Mikhaylovich Divin, Badma
Vladimirovich Sangadzhiev y Vladislav Petrovich Sorokin
Shares as an object of civil law regulation
of xation, it is not even securities, but an electronic form of accounting
for the owners of capital, who have pre-dened rights and corresponding
obligations towards the user of this capital. E. Vazhinskii (2007) noted that
non-documentary securities are not securities in the traditional sense as
objects of property law. In the doctrine, researchers believe that securities
and uncertied securities are institutions that have a dierent legal nature,
and therefore should have dierent legal regimes.
Thus, in the rst place, the form of the document is taken out when
analyzing the legal nature of securities. According to the presented concept,
securities can only be documentary, and non-documentary ones go beyond
the scope of the securities institute.
The fallacy of such judgments lies in the fact that the authors of such
a concept unreasonably restrict the material medium of information,
indicating that it can only be paper. Such a restriction of the form of securities
is erroneous with the development of digital technologies. This conclusion
also follows from the analysis of the current legislation. In particular,
the law «On Information, Informatization and Information Protection»
(Federal Law of the Russian Federation, 2006), does not associate the term
«document» only with paper.
As for the point of view of the representatives of the non-documentary
concept, they dene security as (Shevchenko, 2004):
1. An incorporeal thing that is devoid of a material substratum and
is a binding contract law that is regulated by the rules of real law.
Therefore, the document recedes into the background before the
phenomenon of security, which is something external to the essence
of security.
2. Securities are considered as a set of property rights.
When analyzing the two concepts, it should be concluded that the non-
documentary concept has advantages over the documentary one, since
it pedals an attempt to develop a common understanding of securities,
in which documentary and non-documentary securities are completely
identied. As K.B. Koraev (2019: 302) points out, security is «a special kind
of thing, which is understood as an incorporeal object that grants its owner
certain property and non-property rights». Despite the attractiveness of
this denition, it should be noted that the legal construction of «incorporeal
objects» is inappropriate. Since, according to E.S. Demushkina (1999:
43), «this concept aims to justify new phenomena in life with the help of
classical norms and does this for already known instruments – classical
documentary securities, which are considered as real rights». It is hardly
possible to apply the construction of «incorporeal things» to objects that by
their characteristics do not relate to things in their usual sense, for example,
electricity, information, and so on. The disadvantage of this approach is
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that it does not consider the dualistic nature inherent in all securities, which
is understood as an indissoluble link between the document and the right
certied by it. Since, as D.D. Borzykh notes, after the loss of the material
shell (i.e., paper), undocumented security remains an ideal shell, that is
understood as security... the ideal shell is just an external manifestation
of the structure of interrelated rights that are contained in undocumented
security.
The presence of an ideal shell, which is also characteristic of non-
documentary securities, makes it possible to establish proprietary rights
to such security and transfer it without any danger since any rights will
not pass to the buyer (Borzykh, 2005). In this case, it is important to
conclude that the undocumented nature of the securities is compensated
by a documented record of an authorized person in a special simple or
computerized register of rights. Thus, the dierence lies only in the method
of xing the rights certied by securities.
Uncertied securities in the form of shares are the most common, and
there is an opinion that it was the share that became «the basis for the
emergence of a special institution of securities in modern conditions»
(Butina, 2006: 67). Undocumented securities are the result of the evolution
of the securities institution and have long been an element of everyday legal
life.
Undocumented securities emerged as a result of the evolution of the
securities institute. As A.V. Shulga rightly points out:
This is a stage of modication of documentary (classical) securities, caused
by the need to accelerate the turnover of these objects of civil rights, since «the
development of industry and economy, the inuence of scientic and technological
progress and competition have led to the modernization» of the concept of
property, its unusual expansion and, accordingly, to the legal recognition of new
types of property, a multiplicity of its varieties (2008: 35).
A share or any other security replaces the certiable rights, not in all
respects, but only in terms of turnover. Uncertied securities, in particular,
shares in comparison with documentary ones have several advantages,
which, according to K. Fradkin (2007), consist in increasing the circulating
capacity of non-documentary securities in comparison with documentary
ones, since non-documentary shares are more convenient for active
modern civil circulation, in contrast to their documentary predecessors,
because today there are well-developed communication systems that make
it possible to carry out transactions with shares, being in any city where
there is a branch of the registrar, which maintains the register of securities
of the corresponding issuer.
In addition, the economic costs associated with the cost of both
material resources and the time required to issue a signicant number of
580
Yury Alexandrovich Svirin, Eduard Eduardovich Artyukhov, Igor Mikhaylovich Divin, Badma
Vladimirovich Sangadzhiev y Vladislav Petrovich Sorokin
Shares as an object of civil law regulation
certicates that are protected from forgery are reduced. The advantages
of non-documentary securities should also include the fact that there is
no risk of loss or damage to the security certicate, as is possible with the
documentary form. N.N. Kalashnikova (2005) also notes the convenience of
storing such shares, since the volumes of the paper and electronic archives
do not correlate with each other.
The Russian legislator was categorical about the possibility of the issuer
choosing the form of securities, namely shares. Since the introduction
of amendments to Article 16 of the law «On the Securities Market»,
registered equity securities (which are also shares) may be issued only
in non-documentary form, except in cases provided for by federal law.
Thus, with the entry into force of these changes in Russia, the process of
dematerialization of securities, which began in 1990, was completed.
Despite the obvious advantages of non-documentary securities, the
question of how to protect the rights of the owners of such securities is quite
controversial today. There are dierent points of view on this issue in the
doctrine. Some researchers note the need for the use of mandatory legal
methods of protection (Filippova, 1998; Zherugov, 2008). Others consider
it possible to use proprietary methods of protection (the use of a vindication
claim).
Finally, representatives of the third concept consider it necessary,
given the special legal nature of undocumented securities, to develop
new (special) ways to protect the rights of the owners of these securities
(Mollerius, 2005). In this case, this suggests the possibility of applying both
binding legal means (a claim for damages or invalidation of the transaction,
but it should be noted that the recognition of the transaction as invalid,
according to which the transfer of rights to securities occurred, does not
mean the restoration of the rights of their owner, since the invalidity of the
rst transaction does not entail the invalidity of the following transactions,
and the securities after them (the following transactions) can also pass to
third parties), and material legal (vindication claim), based on the dualistic
nature of securities.
According to E.A. Kharitonov (2006: 82), the term «obligatory means
of protecting property rights» has some inaccuracy, since civil legislation
provides for the possibility of protecting property rights from illegal actions
of subjects of not only civil, but also public law (for example, when a legal
act of a public authority is declared invalid), and therefore it is more logical
to use the term «personal protective equipment». In this connection, it
seems to us that the material-legal methods of protection are more eective
since they provide an opportunity to claim securities from any person.
In the doctrine, there is an opinion that it is impossible to apply a
vindication claim since undocumented securities are not individually
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CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 570-585
dened things, and they do not have characteristics that would provide
an opportunity to implement their individualization, and, consequently,
vindication. In particular, V. Dobrovolskii (2005) notes that the legislation
of the Russian Federation does not provide for the possibility of identifying
shares of one issue (with one number) on any other grounds than the
issue number, and therefore they are not subject to vindication. However,
it seems to us that this statement is controversial. Therefore, sometimes,
taking into account the specics of uncertied securities as objects of civil
rights, the concept is not «vindication claim», but a claim of vindication
nature is used in judicial practice. Therewith, in the absence of a judicial
precedent, Russian law enforcement practice cannot boast of stability
in this regard and, as we have already indicated, the rights of securities
holders cannot be limited depending on whether the security is corporal or
incorporeal (Svirin et al., 2021).
The peculiarity of the claim, which has a vindication character, is that
when it is used, there is no actual seizure of the thing from the defendant.
Such a claim can be satised if certain conditions are met, namely:
1. possession of the right of ownership or other property right
concerning the subject of the dispute on the part of the plainti.
2. individualization of the subject of the dispute.
3. the disputed property must be in the illegal possession of the
defendant.
4. the defendant is an unscrupulous acquirer, or some grounds allow
claiming property from a bona de acquirer.
Concerning non-documentary securities, their individualization is fully
preserved only when the securities are credited to the account of the rst
owner. With their further circulation, that is, when switching from «account
to account», this identity is lost, because the shares within the same issue
do not dier from each other. This scheme of switching «from account to
account» is used for illegal deprivation of ownership of non-documentary
securities, by creating a bona de acquirer. In this connection, G. Osipov
(2007: 157) points out that, in addition to individualizing the generic thing,
to bring a claim, it is necessary to establish «the way of things (proof that the
lost generic things in a certain amount passed from one owner to another,
sequentially from the copyright holder to the defendant”. Given the legal
nature of generic things, this is quite dicult to do, and sometimes even
impossible.
To prevent this, the scientic literature has repeatedly noted the need
to assign each non-documentary security an ordinal number. In this
connection, A. A. Kukushkin (2007) concludes that to ensure proper
protection of owners of undocumented and immobile shares, it is necessary
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Yury Alexandrovich Svirin, Eduard Eduardovich Artyukhov, Igor Mikhaylovich Divin, Badma
Vladimirovich Sangadzhiev y Vladislav Petrovich Sorokin
Shares as an object of civil law regulation
to assign a certain identication number directly to each share, and not to
the entire issue of shares.
Having studied the legally xed and theoretically developed provisions
concerning the legal nature of a share as a special type of securities, the
author’s denition of the term «share» is proposed – as registered security
without a certain circulation period, certifying the same corporate rights
of its owner (shareholder) within a single issue relative to the person who
assumes the corresponding obligations (issuer), which exist exclusively in
an undocumented form.
Conclusion
As a result of the study, the following conclusions should be drawn:
1. A share belongs to equity securities, but in comparison with other
equity securities, shares of the same company must confer the same
rights to their owners within the same issue
2. A share is the only corporate security since it is the only one that
grants its owner a unique set of rights and reects one of the main
characteristics of a corporation – management and participation in
management.
3. There is no fundamental dierence in the legal nature of the
documentary and non-documentary form of the share, since all the
«non-documentary» nature of the security, in particular the share,
is compensated by a suciently documented record in a special
register of rights certied by the security.
4. Shares, like any other undocumented securities, should be
understood as res incorporales «incorporeal things» since
undocumented shares exist in the form of an electronic digital code
that is tangible to the human senses. Therefore, for the recognition
of an electronic record as security (share), it does not matter whether
it is a document. Such a share is the security (an incorporeal thing)
through the direct recognition of this by the legislator.
5. A share can be considered as a unit of measurement of corporate
rights. The stake in the equity capital and the share are related as a
genus and a species. A share is a type of stake and at the same time
security. A share is a stake in respect of which the law recognizes the
property, quality of a security. However, such a particle has «evolved»
concerning security, which opens up additional opportunities for its
turnover, increases the mobility of its circulation.
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Acknowledgments
This paper has been supported by the RUDN University Strategic
Academic Leadership Program.
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