The concept of a security, its properties and functions

Security- this is a form of existence of capital that is different from its commodity, productive and monetary forms, which can be transferred instead of himself, circulate on the market as a product and generate income.

Properties valuable papers:

1) negotiability- ability securities be bought and sold on the market, and also in many cases act as an independent payment instrument that facilitates the circulation of other goods;

2) accessibility for civil circulation– the ability of a security not only to be bought and sold, but also to be the object of other civil relations, including all types of transactions (loans, donations, storage, commissions, orders, etc.);

3) standardness– the security must have standard content (standardization of the rights that the security represents, standardization of participants, terms, places of trading, accounting rules and other conditions for access to these rights, standardization of transactions associated with the transfer of a security from hand to hand, standardization of the form of the security paper, etc.);

4)seriality– the possibility of issuing securities in homogeneous series and classes;

5)documentary– a security is always a document, and as a document it must contain everything required by law required details, the absence of at least one of them entails the invalidity of the security or transfers this document their classification of securities into the category of other obligatory documents;

6) regulation and recognition by the state– stock instruments claiming to be securities must be recognized by the state as such, which should ensure their good regulation and, accordingly, trust in them;

7) marketability– negotiability indicates that a security exists only as a special product, which, therefore, must have its own market with its inherent organization, rules for working on it, etc.; should mostly belong to the market, be goods and those resources, the rights to which are securities;

8) liquidity– the ability of a security to be quickly sold and converted into cash (in cash and non-cash form) without significant losses for the holder, with minor fluctuations market value and implementation costs;

9)risk– the possibility of losses associated with and inevitably inherent in investments in securities;

10)obligation execution- By Russian legislation Refusal to fulfill the obligation expressed by the security is not allowed, unless it is proven that the security came to the holder through unlawful means.

It should also be noted that the security fulfills a number of socially significant functions:

1) redistributes funds (capital) between industries and spheres of the economy; territories and countries; groups and segments of the population; population and economic sectors; population and state, etc.;

2) provides certain additional rights to its owners in addition to the right to capital (for example, the right to participate in management, relevant information, priority in certain situations, etc.);

3) ensures receipt of income on capital and (or) return of the capital itself, etc.

Types of securities

There are dozens of types of securities. They differ in the rights and obligations of the investor (the buyer of the securities) and the issuer (the one who issues the securities) enshrined in them.

1 - Basic and derivatives .

As main securities are shares, bonds, treasury obligations of the state (notes, bills, certificates of deposit, etc.), which are rights to property, cash, products, land and other primary resources.

Promotion– an issue-grade security that secures the rights of its holder (shareholder) to receive part of the profit of the joint-stock company in the form of dividends, to participate in management and to part of the property remaining after its liquidation.

Bond is a debt obligation, according to which the issuer guarantees to the investor the payment of a certain amount after a certain period and the payment of annual income in the form of a fixed or floating interest.

Bill of exchange- a written contractual obligation drawn up in the form established by law and giving its owner the unconditional right to demand, upon the end of the term, from the person who issued the obligation, payment of the amount of money specified in it.

Certificate of Deposit– a written certificate from credit institutions about the deposit of funds, certifying the depositor’s right to receive the deposit.

Derivatives securities – securities that certify the owner’s right to purchase or sell underlying securities. Such papers include options, financial futures.

Option is a bilateral agreement to transfer the rights to buy or sell a specified underlying asset at a specified price on a specified future date. If the owner of the option can refuse to exercise his right, thereby losing cash prize, which he paid to the counterparty, then the futures transaction is binding for subsequent execution.

Financial futures- a contract under which the investor who enters into it undertakes the obligation, after a certain period, to sell to his counterparty (or buy from him) a certain quantity of an exchange commodity (or financial instruments) at a specified price.

If the owner of the option can refuse to exercise his right, thereby losing the cash premium that he paid to the counterparty, then the futures transaction is binding for subsequent execution. .

2 - Fixed and unlimited By maturity, securities are divided into.

urgent and unlimited According to generally accepted practice urgent

securities are: short-term

– with a repayment period of up to 1 year, medium term

– from 1 year to 5 years, long-term

– over 5 years (for debt obligations from 5 to 30 years). TO unlimited

securities include stock instruments that do not have a final maturity - shares, perpetual bonds. .

3 - Personalized, order, bearer Based on differences in the rights of the owner of securities when performing transactions with them, securities are divided into registered, order And.

to bearer Nominal

A security is a document issued in the name of a specific person who alone can exercise the right expressed in it. Such securities can usually be transferred to other persons, but this requires the completion of a number of formalities and specially complicated procedures, which makes this type of securities low-tradability. Warrant

security – drawn up in the name of the first holder with the clause “by his order”. Accordingly, the order paper is transferred to another person by making an endorsement. According to Russian legislation, order papers can be a check, a bill of exchange, or a bill of lading. is a security that does not indicate a specific person to whom execution should be performed. The person authorized to exercise the right expressed in such a security is any holder of the security who only must present it. This type of security has increased negotiability, since in order to transfer to another person the rights certified by the security, simply delivering it to that person is sufficient and no formalities are required. Examples of this type of securities are government bonds, bank bearer passbooks, checks, etc.

4 - State, corporate, private .

According to the form of ownership of the issuer, securities are divided into state, corporate and private.

State securities usually cover stock instruments issued or guaranteed by the government on behalf of the state, its ministries and departments, and municipal authorities.

Federal loan bonds(OFZ) are the main type of medium-term securities issued by the Government of the Russian Federation to finance the budget deficit.

Government Savings Loan Bonds(OGSZ) are issued by the Government of the Russian Federation to cover the budget deficit. OGSS provides the right to receive income above the level of yield on other types of government securities.

Gold certificates, issued by the Ministry of Finance of the Russian Federation in 1993. for a period of 1 year, were placed in 1994. The guaranteed return on the certificate is accrued quarterly. The gold certificate is subject to tax benefits.

To securities corporations include corporations' obligations to creditors to pay deadlines debt, as well as interest on loans received. Generally, the purpose of corporations issuing stocks and bonds is to raise long-term capital.

Many securities are issued by private companies or individuals and are therefore called private(commercial)

TO private Securities include bills of exchange and checks.

Bill of exchange – This is a security drawn up in a strictly defined form, certifying the monetary debt obligation of the drawer (debtor) to pay, upon the maturity of the period specified by the bill, a certain amount to the holder of the bill (owner of the bill, creditor). The bill may be simple and translatable. A promissory note is a registered security, since it indicates the name of not only the payer, but also the recipient of the funds. Moreover, the drawer himself acts as the payer here, and the recipient of the funds is the person in whose favor the bill is issued.

By check A security is recognized that contains an unconditional written order from the drawer to the bank to pay the holder of the check the amount specified in it. The bank issues the drawer a special checkbook (limited or unlimited) with a certain number of checks. A check is a strictly urgent security, since its validity period is determined by law and is 10 days from the date of issue. Checks can be personal, order and bearer.

1.3. Characteristics and properties of securities

The main properties of securities are the following:

- negotiability - they are freely bought and sold, and are also an independent payment instrument;

- availability for civil transactions - can be the subject of various agreements (purchase and sale, donation, storage, commission), are the object of civil relations;

- standardness rights and agreements, i.e. standard content;

- seriality- possibility of production in homogeneous series, classes;

- documentary- a security is a document, regardless of whether it exists in the form of a paper certificate or in a non-cash form of account entry;

- regulation and recognition the state, which ensures public confidence in securities;

- marketability;

- liquidity - the ability to quickly sell on the market and turn into cash;

- risk - the occurrence of losses associated with investments in securities.

Securities as financial and monetary documents exhibit their properties as:

Documents confirming participation or membership in the issuing organization (shares, share certificates, share certificates, certificates of participation in investment funds and etc.). In the context of the securities market, belonging to the issuing organization, participation or membership in it gives the owner of this security the right to take part in the management of the issuer, i.e. general meeting shareholders or participants, vote, make proposals, nominate candidates for elected management bodies of the issuer, receive information regarding the activities and financial condition of the issuer, participate in the distribution of the issuer's property upon its liquidation;

Debt documents, i.e. monetary documents indicating the existence of creditor-debtor relations between the issuer and the owner of the security ( different types bonds, certificates of indebtedness, bills of exchange, commercial paper, etc.). When purchasing debt documents, their owner receives the status of a creditor of the issuer, and not the owner of its property. Conversely, when purchasing securities confirming participation or membership, their owner receives the status of owner of the issuer's property. In case of debtor-creditor relations, the right to participate in the management of the issuer’s affairs is not granted;

Means of payment (settlements), i.e. perform one of monetary functions, since they also have a cost;

A means of ensuring the fulfillment of obligations. In some cases, there is a possibility or risk that the obligations undertaken may not be fulfilled. To reduce this likelihood or reduce the risk, the debtor (buyer) may pledge its securities to the creditor (seller) as a guarantee that in the event of failure to fulfill its obligations, the corresponding losses of the creditor (seller) will be covered by the value of these securities.

Securities do not include:

Documents confirming receipt bank loan(in particular, a loan agreement);

Documents confirming the deposit of funds in the bank (with the exception of certificates of deposit and savings certificates);

IOUs (not to be confused with bills of exchange!);

Wills;

Lottery tickets;

Insurance policies, etc.

In some countries, the main criterion by which some financial or monetary documents are considered securities, while others are not, is the legislative consolidation of the list of securities.

The list of securities contained in the laws of different countries may be exhaustive or open. In the first case, only those monetary documents that are directly indicated in the list are recognized as securities. In the second case, the category of securities includes all monetary documents listed in the law, as well as others not specified in the list, if they meet the requirements established by law.

Lists of securities can be broad or narrow. For example, in the new edition of the Law of Ukraine “On Securities and stock market» there are 15 types of securities: shares, investment certificates, local loan bonds, enterprise bonds, government bonds of Ukraine, treasury bonds of Ukraine, savings (deposit) certificates, bills of exchange, mortgage bonds, mortgage certificates, collateral, certificates of real estate funds (FON), privatization papers, derivative securities, title securities.

Japanese Securities and Exchange Law stock exchange"(1948) contains a less extensive list - 9 types of securities: shares, government bonds, local bonds, special bonds of legal entities, secured and unsecured bonds of legal entities, investment certificates that are issued legal entities and created pursuant to special laws, beneficial trust certificates, securities issued by foreign governments or foreign entities having the same status as listed securities, certificates issued by order of the government.

US law (1933) contains an even broader list of securities. Under this law, the term "security" means any short-term bond, unit, treasury share, government bond, secured bond, certificate of indebtedness, certificate of participation in any income distribution agreement, certificate of a secured asset trust, certificate of incorporation, certificate of subscription for securities, shares in circulation, investment contract, voting trust certificate, certificate of deposit, undivided interest in an oil and gas enterprise or other mineral rights, any call option, put option, double option or privilege associated with any security, certificate of deposit or class of securities, or with securities that are based on index measures or value indices, or any call, call, or double option, or privilege received on a national securities exchange and associated with foreign currency, or generally any instrument known as a “security”, or any certificate of ownership or participation, provisional or interim certificate, receipt, guarantee or option, or right of subscription, or right to acquire any of the foregoing.

National securities markets have both common features and specific features. These features may be explained by the historical development of a given country, or may have a linguistic origin. For example, when determining the types of securities, the Japanese approach is more “strict”, while the American approach is relatively “loose”. In Japan, the law ensures that only certain monetary instruments are called securities, but US law is willing to recognize a much larger number of monetary instruments as securities. In Japanese legislation (based on national-historical characteristics), it is not customary to use expressions like “any instrument that is understood as a security.” Conversely, the term “revenue distribution agreement participation certificate” or other terms represent features of the evolution of the American market.

Linguistic differences manifest themselves in two ways. For example, securities having a similar status may be referred to by different terms. Thus, in Europe, short-term obligations of the state are sometimes called a draft, in the USA - a bill. On the other hand, the same term can have different meanings. Thus, a written debt certificate “debenture” in the USA means a security secured by the reputation, and not the assets of the issuer, in the UK, on ​​the contrary, a security secured by the assets of the issuer. The term "income bonds" in the UK is used to define fixed interest bonds issued by insurance companies; in the United States, it means a bond in which the issuer guarantees payment of the face value, and interest can be paid only if the issuer makes a profit and the board of directors decides to pay interest.

For example, the Japanese Law “On Securities and the Stock Exchange” (1948), the Law of Ukraine “On Securities and the Stock Market” as amended in 2006 contain an exhaustive list, in the USA the list is open in the “Securities Law” (1933).

Previous

Security(in English security; hereinafter sometimes ts.b.) is a form of existence of capital, different from its commodity, productive, and monetary forms, which can be transferred instead of itself, circulate on the market as a commodity and generate income. This is a special form of existence of capital along with its existence in monetary, productive and commodity forms. Its essence is that the owner does not have the capital itself, but has all the rights to it, which are recorded in the form of a security.

Securities like economic category - is the right to a share of the total capital obtained as a result initial placement these securities, as well as for the distribution and redistribution of profits that such capital provides. This right is separated from its natural basis (money, equipment, patents, etc.) and even has its own material form (for example, in the form of a paper certificate, account records, etc.), as well as having the fundamental properties of securities .

Signs of securities

In the legal literature, the following characteristics of a security are distinguished:

• Documentary - a security is a document, that is, a record officially compiled by an authorized person in accordance with the details that has legal significance;
• The embodiment of private rights - a security is valuable not in itself, but because it embodies subjective civil rights of a property (obligatory and real-law) and non-property nature (for example, the right to participate in the management of a company);
• Necessity of presentation - presentation of a security is mandatory for the exercise of the rights enshrined in it;
• Negotiability - a security can be the object of civil transactions;
• Public reliability - in relation to a properly legitimized holder of a security, the person obligated under it can only raise such objections that arise from the content of the document itself or relate to the validity of the paper, or are based on the direct relationship between the debtor under the security. and its owner.

Properties of securities

Securities are recognized as rights to resources that meet the following fundamental requirements:

• Tradability as the ability to be bought and sold on the market, as well as to act as an independent payment instrument;
• Availability for civil circulation as the ability to be the subject of civil transactions;
• Standardity as the presence of a standard presentation of details, which makes it a commodity capable of circulation;
• Documentation - a security is a document;
• Regulatory and state recognition, which ensures a reduction in security risks and increased investor confidence;
• Marketability - inextricably linked with the corresponding market, are its reflection;
• Disclosure of information - equal access to information about securities of various issuers must be ensured;
• Liquidity;
• Risk;
• Profitability.

Cost and price of securities

A security has two values: nominal (face) value (value as a representative of real capital) and exchange (market) value (value as fictitious capital).

Face value of securities(par value) represents the amount of money that a security provides when exchanged for actual capital at the stage of its issue or redemption.

Market value of securities- this is the result of the capitalization of its property rights. It is calculated as the amount of capitalization of property and other rights of the securities.

Market price of a security is a monetary assessment of its market value, which is calculated using the following formula:

Price = Market Value × (1 + Percentage of deviations of market price from value)

Details of the security

Securities must contain the mandatory details required by law and comply with the requirements for the form of securities, otherwise they are invalid. The details of securities can be divided into economic and technical.

Technical details:

• numbers;
• addresses;
• printing;
• signatures;
• name of service organizations, etc.

Economic details:

• form of existence (paper or paperless);
• period of existence;
• belonging;
• obligated person;
• denomination;
• granted rights.

Classification of securities

Securities can be classified according to the following criteria:

• Lifespan: urgent (short-term, medium-term, long-term and revocable) and unlimited;
• Form of existence: paper (documentary) or paperless (undocumented);
• Owner registration procedure: personal, bearer, order;
• Application form(transfer order): transferred by agreement of the parties (by delivery, by assignment) or by order (transferred by order of the owner -);
• Release form: emission or non-emission;
• Registration: registered ( state registration or registration by the Central Bank of the Russian Federation) and unregistered;
• Nationality: Russian or foreign;
• Type of issuer: state (federal or municipal) and non-state (corporate or private);
• Negotiability: market or non-market;
• Purposes of use: investment (the goal is to generate income) or non-investment (serve turnover in commodity markets);
• Risk level: risk-free or risky (low-risk, medium-risk or high-risk);
• Availability of accrued income: non-income or income-generating (interest, dividend, discount);
• Denomination: constant or variable.

Securities as rights to resources

Uncertificated securities

In cases determined by law or in the manner established by it, a person who has received a special license can record the rights secured by a registered or order security, including in non-documentary form (using electronic computer technology, etc.). The rules established for securities apply to this form of fixation of rights, unless otherwise follows from the specifics of the fixation.

A person who has recorded a right in a non-documentary form is obliged, at the request of the owner of the right, to issue him a document evidencing the secured right.

Rights certified through the specified registration, the procedure for official registration of rights and copyright holders, the procedure documentary evidence records and the procedure for performing transactions with uncertificated securities are determined by law or in the manner established by it. Transactions with uncertificated securities. can only be performed when contacting a person who officially records rights. The transfer, grant and limitation of rights must be officially recorded by this person, who is responsible for the safety of official records, ensuring their confidentiality, providing correct data on such records, and making official records of transactions performed.

Types of securities

C.B. existing in modern world practice. are divided into 2 classes:

• basic;
• derivatives.

Basic securities- these are securities based on property rights to any asset, usually goods, money, capital, property, various kinds of resources, etc. The main securities, in turn, can be divided into two subgroups : primary and secondary securities.

• Primary securities based on assets, which do not include the securities themselves. (backed by assets). These are, for example, stocks, bonds, bills, mortgages, etc.
• Secondary securities- produced on the basis of primary securities; this is c.b. on the securities themselves: on securities, depositary receipts, etc.

This is a non-documentary form of expression of a property right (obligation) arising in connection with a change in the price of the underlying security. exchange asset. To derivatives c.b. include: freely circulating (commodity, currency, interest, index, etc.).

In Russian civil law c.b. classified according to the method of legitimizing the owner of the security (authorized person) into bearer (bearer securities), registered, order (order).

Securities legislation

C.B. Market The following regulatory documents regulate:

• Civil Code of the Russian Federation Chapter 7 “Securities”
• Federal Law No. 39-FZ “On the Securities Market” dated April 22, 1996.
• Federal Law No. 208-FZ “On Joint Stock Companies” dated December 26, 1995.

From a legal point of view, c.b. can be considered as a title of property rights as well as movable property. WITH economic point In view, a security is a representative of capital.

1. To transfer to another person the rights certified by the c.b. to the bearer, delivery of the security to that person is sufficient.
2. Rights certified by a registered security are transferred in the manner established for the assignment of claims (cession). In accordance with Article 390 of this Code, the person transferring the right under the central bank is liable for the invalidity of the corresponding requirement, but not for its non-fulfillment.
3. Rights under an order security are transferred by making an endorsement on this paper - an endorsement. bears responsibility not only for the existence of the law, but also for its implementation. An endorsement made on a security transfers all rights certified by the security to the person to whom or to whose order the rights under the security are transferred -. An endorsement can be a blank endorsement (without indicating the person to whom the execution must be made) or an order (indicating the person to whom or whose order the execution must be made).

An endorsement may be limited only to an instruction to exercise the rights certified by a security, without transferring these rights to the endorsee (authentic endorsement). In this case, the endorsee acts as a representative.

In certain cases, for the exercise and transfer of rights certified by a security, it is sufficient to prove their registration in a special register (regular or computerized).

The definition of a security, which is given in the Civil Code of the Russian Federation, is classified as a legal definition. Based on this, signs, or properties , securities that can be distinguished based on this definition are considered as legal :

Documentary (confirms this property of the word from the definition: “a security is a document”); documents can be different - this is a contract, an agreement, a certificate, a warehouse receipt, and a bank savings book etc., but not every one of these documents will be a security; for a document to be considered a security, it must have other properties;

Recognition by the state, i.e., a document will be considered a security if it is named as such by law (this property does not directly follow from the definition of a security - it follows from Article 143 of the Civil Code of the Russian Federation, which lists the types of securities and indicates that in addition to the listed types of securities, they may include “other documents that are classified as securities by laws on securities or in the manner established by them,” and therefore, from the moment the first part of the Civil Code of the Russian Federation comes into force, new types of securities can only appear in accordance with laws or in the manner established by them, but not at the direction of presidential decrees, government regulations, and especially departmental acts of the Federal Financial Markets Service of Russia, the Bank of Russia or the Ministry of Finance of Russia, on the initiative of commercial banks and individuals);

Standardity, i.e. the security must be drawn up in the established form and have a set of mandatory details (this property of the security is confirmed by the words of the definition: “document... in compliance with the established form and mandatory details”). The form and details for each type of securities are different. Typically the list of details includes: name of the security; number, series; name of the issuer; name of the owner of the security; nominal cost; certified rights; an agent person servicing rights under a security; Date of preparation; period of existence, form, corresponding signatures, etc. If the security is drawn up on on paper, then there are requirements for the form of a security: format, size of fields, paper quality, printing method, location of certain details, degree of protection of forms from counterfeiting, etc.

If a security does not comply with the form established by law and does not comply with the set of required details, it ceases to be a security (in legal terms, this entails “the nullity of the paper” (Article 144, paragraph 2 of the Civil Code of the Russian Federation);

Certification of rights (confirms the presence of this property in a security, the words of the definition: “a security is a document certifying ... property rights”). This refers to the rights of the owner of a security, which he presents to the person who issued the security. This may be the right to receive a specific sum of money(face value or part thereof upon redemption of a bond, amount of deposit or deposit, accrued interest or dividends, etc.), goods or provision of services. What specific rights can be certified by a certain type of securities, as well as the mandatory details and requirements for the form, are determined only by law or in the manner prescribed by it (Article 144, clause 1 of the Civil Code of the Russian Federation). And, accordingly, they cannot be introduced at the will of the parties.

It is not entirely correct in the definition of a security to indicate that rights can be property rights - securities can also certify non-property rights, for example, on shares (the right to participate in management joint stock company, right to information). And the definition of an issue-grade security, which is given in Federal law“On the Securities Market” eliminates this inaccuracy: it states that an issue-grade security “secures a set of property and non-property rights” (Article 2);

The need to present a security to exercise or transfer the rights it certifies (this property is confirmed by the words of the definition: “a security is a document certifying... rights, the exercise or transfer of which is possible only upon presentation”). The transfer of the rights certified by the security in their entirety occurs with the transfer of the security.

Moreover, in order to exercise the rights certified by a security or transfer a security, and therefore transfer all the rights that it certifies, it is not necessary to present a physical medium (form or otherwise certificate) of the security - this is required if the security is issued in documentary form (the exact name of the form of securities in which the owner of a security is issued a security certificate is documentary without mandatory centralized storage, its essence will be discussed in Chapter 2.4). If a security is issued in a form in which the owner is not given a security certificate, then in order to exercise the rights under the security or transfer it, “there is sufficient evidence of their registration in a special register” (Article 142, paragraph 1 of the Civil Code of the Russian Federation) ), that is, present a document confirming ownership of the security (for example, for a share, such a document is an extract from the register of shareholders).

Economic essence securities allow you to disclose economic properties securities:

Tradability, i.e. the ability of a security to be bought and sold on the market, and also to act as an independent payment instrument; this property is closely related to the property of standardization: it is standardization that makes a security a tradable commodity (an individual non-standard contract is limited to the framework of a specific transaction, it cannot be tradable, and in order to transfer rights under this contract it is necessary to conclude a new contract on individual terms; and, on the contrary, only a standard contract is capable of independent circulation, of passing from hand to hand as a special commodity, turning into a security); a property almost identical to the property of negotiability is marketability: if a security can be circulated, it is said to be marketable, but if the issuer has established restrictions on the circulation of the security, and such a security cannot be sold to anyone, but only returned to the one who issued it, then it is non-market;

Liquidity is the ability of a security to be quickly sold and converted into cash without significant losses for the owner of the security, with small fluctuations in market value and sales costs. Liquidity is related to the time required to sell a security: the more liquid the security, the less time it takes to sell it; the liquidity property of a security is directly related to negotiability: if a security is not negotiable, it cannot have liquidity;

Availability for civil circulation - the ability of a security not only to be bought and sold, i.e. to be the subject of a purchase and sale agreement, but also the subject of other agreements: pledge, loan, lending, donation, inheritance, storage, commission, assignment, trust management and etc.;

Profitability - the ability of a security to generate income to its owner, accrued and/or in the form of exchange rate profit; only capital market securities can have the property of profitability (see: Chapter 1.3);

Reliability - the degree of safety of investing in securities; when they talk about a security as reliable, they mean minimal risk loss of invested capital and income received; reliability is determined by many factors, external and internal, reliability is inversely related to profitability;

Risk - means a state of uncertainty in the exercise of rights to a security, and above all to income; risk is associated with reliability and profitability: the higher the risk, the greater the profitability; the higher the reliability, the lower the risk and profitability.