Legal regulation of the issue of securities. Issuable securities.

The concept of the issue of securities in the current Russian legislation applies to a certain class of securities, namely, issuance securities, characterized simultaneously by such features as securing a set of property and non-property rights subject to certification, assignment and unconditional exercise in compliance with the form and procedure established by law; placement of issues; equal volume and terms of exercising rights within one issue, regardless of the time of acquisition of the security, and means the sequence of actions of the issuer for their placement established by Russian law. Issued securities include shares and bonds, as well as option certificates, which are derivatives of the underlying asset, which can only be shares and bonds, securities. The term “circulation of securities” means the conclusion of civil transactions involving the transfer of ownership of securities, and applies to all types of securities. The main difference between the legal regime of emissive and non-emission securities is the presence of preliminary state registration of the issue of emissive securities, the purpose of which is to secure and ensure the rights of their potential owners.

The regulatory framework for the issue and circulation of securities in the Russian Federation includes legislative acts, including the Civil Code of the Russian Federation, Federal Laws “On the Securities Market”, “On Joint-Stock Companies”, “On Limited Liability Companies”, “On Peculiarities issues and circulation of state and municipal securities”, “On the Bank of Russia”, as well as regulations of the Federal Commission for the Securities Market (FCSM), the Government of the Russian Federation, the Bank of Russia. An analysis of the current legislation allows us to conclude that there are different legal regimes for the issue and circulation of securities for different issuers.

In the general case, the procedure for issuing equity securities includes the following stages: the issuer makes a decision to issue securities; issue registration; for documentary securities – issuance of certificates of securities; accommodation; registration of a report on the results of the issue of securities.

When registering a securities issue prospectus, the issue procedure includes additional steps: preparation of an issue prospectus; registration of the issue prospectus; disclosure of information contained in the prospectus; disclosure of information contained in the report on the results of the issue.

In order to register an issue of emissive securities, the issuer is obliged to submit to the registering authority documents, based on the results of consideration of which the registering authority registers the issue of securities or makes a reasoned decision to refuse registration. The list of registration authorities on the territory of the Russian Federation includes the FC Central Bank and its territorial branches, the Ministry of Finance of the Russian Federation (registers the Conditions for the issue and circulation of securities of constituent entities of the federation, municipalities, issues of bonds of the Bank of Russia), the Central Bank of the Russian Federation represented by the Department for Control over the Activities of Credit Institutions in financial markets and territorial branches of the Bank of Russia.

A detailed description of the procedures for issuing shares and bonds, the stages of preparing the issue prospectus, is contained in the regulatory acts of the FCSM. Thus, the effect of the Standards for the Issue of Shares and Bonds and their prospectuses during the reorganization of commercial organizations, approved by the Decree of the FCSM of February 12, 1997 No. 8 (as amended by the Decree of the FCSM of November 11, 1998 No. 48), applies to shares of joint-stock companies and bonds of joint-stock companies and other commercial organizations placed during their reorganization. The validity of the Standards for the issue of shares when establishing joint-stock companies, additional shares, bonds and their emission prospectuses, approved by the FCSM Resolution of September 17, 1996 No. 19 (as amended by the FCSM Resolution of November 11, 1998 No. 47), applies to shares of joint-stock companies , as well as bonds of legal entities that, in cases provided for by federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, may enter into loan agreements by issuing and selling bonds. The terms and procedure for issuing bonds are contained in the Standards for issuing bonds and their prospectuses, approved by the Decree of the Federal Commission for the Securities Market dated October 19, 2001 No. 27. The standards apply to bond issues carried out by Russian issuers: joint-stock companies, limited liability companies, as well as other legal persons who, in cases provided for by federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, may enter into loan agreements by issuing and selling bonds. Finally, Decree of the FCSM dated January 9, 1997 No. 1 (as amended by Decree No. 45 dated December 31, 1997) approved the Standards for the issue of option certificates and their prospectuses, which apply to option certificates of joint-stock companies, limited liability companies and other organizations.

The procedures for registration and issuance of equity securities by credit institutions are established in Bank of Russia Instruction No. 8 dated September 17, 1996, “On the Rules for the Issue and Registration of Securities by Credit Institutions in the Territory of the Russian Federation” (as amended by subsequent Bank of Russia Instructions).

In accordance with the current legislation, the Bank of Russia, in order to implement monetary policy, may issue bonds on its own behalf that are placed and circulated only among credit institutions, while the specifics of the procedure for issuing bonds of the Bank of Russia are determined by the Government of the Russian Federation in accordance with the legislation of the Russian Federation. At present, the procedure for issuing and registering bonds of the Bank of Russia is contained in the Regulation “On the Peculiarities of the Issue and Registration of Bonds of the Central Bank of the Russian Federation”, approved by Decree of the Government of the Russian Federation of October 12, 1999 No. 1142.

In Russian legislation, a special place is occupied by the authorities that issue securities. Thus, the Law “On the Securities Market” contains a provision according to which the powers of the Federal Commission for the Securities Market do not apply to the procedure for issuing debt obligations of the Government of the Russian Federation and securities of constituent entities of the Russian Federation. The procedure for issuing municipal and government securities, the conditions for their placement and circulation are regulated by Federal Law No. 136-FZ of July 29, 1998 “On the Peculiarities of the Issue and Circulation of State and Municipal Securities”.

Under the issue of securities is understood the sequence of actions of the issuer for the placement of securities.

As a result of the issue, only issue-grade securities can be put into circulation. Issuance security – any security, including non-documentary, characterized by the following features:

  • establishes a set of property and non-property rights subject to certification, assignment and unconditional exercise in compliance with the form and procedure established by law;
  • placed by issues;
  • has an equal volume and terms of exercising rights within one issue, regardless of the time of purchase of the security.

The Federal Law “On the Securities Market” directly refers to equity securities only shares and bonds. In addition, this law establishes a rule according to which any property and non-property rights fixed in a documentary or non-documentary form, regardless of their name, are emissive securities if the conditions for their occurrence and circulation correspond to the totality of legal features of an emissive security.

According to this rule, the following can be additionally classified as emissive securities: a housing certificate, an option certificate and a share of an investment mutual fund.

Although the system of legal norms governing relations in the securities market has been formed in Russia relatively recently, at present we can already speak of the existence of a legal framework governing relations arising from the issue of securities.

The purpose of legislative regulation of relations in the process of placement of securities is mainly the detailed regulation of the actions of the issuer and other persons in the course of the issue, as well as the creation of a lawful model of their behavior. In this case, legal regulation is designed to minimize violations of the rights and legitimate interests of participants in the primary market for shares and bonds, which can lead the participants in relations to a deliberately disadvantageous position.

The issue of securities as a special activity of the issuer is carried out in accordance with the requirements of the regulatory acts of the Russian Federation or in the manner prescribed by them. The main provisions and specific rules of law governing the issue of securities are contained in the following regulations at various levels: the Constitution of the Russian Federation, the Laws of the RSFSR and Federal Laws, other regulations – decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, regulations of ministries and other federal executive bodies .

More detailed regulation of the issue procedure is provided mainly by legislative acts. First of all, they include the Civil Code of the Russian Federation, which, although it does not contain the concept of the issue of securities and the procedure for its implementation, nevertheless is the basis for all subsequent regulations containing civil law norms.

The following laws should be singled out: the Federal Law “On the Securities Market”, which provides for special rules on the legal regulation of the procedure for issuing securities. Federal Law “On joint-stock companies”, which regulates the specifics of the issue of securities by a joint-stock company.

Of the legislative acts of the Russian Federation, a special place is occupied by the Federal Law “On the Protection of the Rights and Protected Interests of Investors in the Securities Market”. This normative act provides for a legislative system of guarantees for protecting the rights of investors, introduces significant restrictions and regulatory prohibitions on certain actions of the issuer during the issue, which may entail a violation of the rights and legitimate interests of investors.

As for the decrees of the President of the Russian Federation, it is possible to single out normative acts that only indirectly regulate the procedure for issuing corporate securities. These include, in particular, Decree of the President of the Russian Federation of April 3, 2000 No. 620 “On the Federal Commission for the Securities Market”, which establishes the competence of the FFMS of Russia to regulate state policy in the field of issuing securities, as well as Decree of July 1, 1996 No. 1008 “On Approval of the Concept for the Development of the Securities Market in the Russian Federation”, which determined the main directions for the development of the securities market, including in the area of issuing government and corporate securities.

In the Russian Federation today there is a system of government bodies that regulate the procedure for issuing securities. Such bodies have the right to adopt normative acts within their competence. The key position in this system is occupied by the Federal Financial Markets Service of Russia, which, on the basis of the Federal Law “On the Securities Market”, approved the most important regulatory acts for regulating the issue of securities. These primarily include the following regulations: Standards for the issue of securities and registration of securities prospectuses, approved by the Order of the Federal Financial Markets Service of March 16, 2005 N 05-4 / PZ-N; Decree of the Federal Financial Markets Service of April 1, 2003 N 03-16/ps “On the Procedure for Assigning State Registration Numbers to Issues of Equity Securities”; Decree of the Federal Financial Markets Service of Securities dated April 1, 2003 N 03-17/ps “On placement and circulation of emissive securities of Russian issuers outside the Russian Federation”; Decree of the Federal Service for Financial Markets of April 1, 2003 N 03-18/ps “On the procedure for combining additional issues of emissive securities”; Decree of the Federal Service for Financial Markets of April 24, 2003 N 03-24/ps “On approval of the Regulations on the features of the issue of bonds and disclosure of information by international financial organizations on the territory of the Russian Federation.”

Issue of securities – bonds, shares, options, etc. – this is a sequence of actions established by law for the placement of emissive securities by eligible issuers. The procedure for issuing equity securities is carried out by those organizations that have the right to do so, with one of the following goals:

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