1Обухова_RESUME_Civil law regulation of n..mentary securitiies holding_УАД (Гражданско-правовое регулирование учёта прав на бездокументарные ценные бумаги)

National Research UniversityHigher School of EconomicsObukhova Evgeniya VladimirovnaCIVIL LAW REGULATION OF NON-DOCUMENTARY SECURITIESHOLDINGEXTENDED ABSTRACT OF DISSERTATIONsubmitted for the degree of Candidate of Science in LawScientific SupervisorIvanov Anton AlexandrovichPh.D. in Law, ProfessorMoscow - 2018The thesis was completed at the Department of Civil and Business Law of theFaculty of Law of the Federal State Autonomous Educational Institution for HigherEducation National Research University ‘Higher School of Economics’The text of the thesis is available on the website of the Higher School ofEconomics: https://www.hse.ru/sci/diss/218776836Academic SecretaryDissertation Council on LawDoctor of Law, assistant professorIryna Alexandrovna Emelkina2  GENERAL CHARACTERISTICS OF THE RESEARCH1Relevance of the research themeThe present dissertation is devoted to the regularities and peculiarities of thelegal regulation of non-documentary securities holding2.

The scope of the researchis differences and shifts in titles3 to and upon a security of the 'holding chain'participants in different holding systems around the world. The correlation betweenthe titles of participants of the holding chain is examined altogether with theinfluence that the holding system exerts on the title to securities of persons in theholding model. The mentioned problem seems not to be evaluated in the domesticliterature yet. Current reforms in this sphere (the introduction of centraldepository4, corporate actions reform5) also require careful analysis.The correlation between the titles of the holding chain participants is examinedin the present research in connection with the influence that the holding system                                                            1I sincerely thank my science leader at the HSE, Prof.

A. Ivanov for the patience and invaluableinsight that significantly improved the final work. I'm grateful for my supervisor at FSU Jena,Germany, Prof. C. Ohler for his guidance, knowledge and patience. Special thanks to my family,friends and colleagues for the encouragement and support. All mistakes in the research remainmy own.2It should be noted that terminology of the Russian legislation essentially differs from that offoreign countries.

The present thesis is intended to develop the idea of securities holding modelsand its' legal consequences. The general notion of holding (and book-keeping, accounting forsecurities) in Russian law is described by a single term associated with a system containinginformation about securities or transactions in respect of those as well as the process ofsystematization of such information. Such definition may be found in para.

2 art.1 of the FederalLaw of 06 December 2011 N 402-FZ On Accounting. In foreign literature bookkeeping processin respect of non-documentary securities is described by terms holding and disposition. In thepresent study 'holding' is considered as describing a process of holding (proprietary or merelycontrol over the asset) and at the same time distribution of the of rights 'to security and 'uponsecurity' (the latter as a bundle of rights incorporated in security) among all participants of theholding chain.3In this study, the term 'title' is used as a complex description of a bundle of rights to a nondocumentary security and entitlement to the rights incorporated in a non-documentary security.In the existing Russian legal terminology 'title' is usually defined as a set of property rights – e.g.Sukhanov E.A., 2017 'Property law: a scientific and educational essay', Moscow: Statute / LegalReference System 'Consultant Plus'.4Federal Law of 7 December 2011 No 414-FZ On the central depository; Federal Law of 7December 2011 415-FZ On Amendments to Certain Legislative Acts of the Russian FederationRelated to the Adoption of the Federal Law On the Central Securities Depository.5E.g.

Federal Law of 29 June 2015 N 210-FZ On Amendments to Certain Legislative Acts of theRussian Federation. Available at: http://www.corpactions.ru/ru/reform/3  exerts on the titles to securities of persons in the holding scheme. It is revealed thatthe current Russian legislation contains very broad rules for determining the personentitled upon a security and such rules vary depending on the form of securitiesholding (indirect or direct). Domestic jurisprudence demonstrates the solution ofthe problem of different title to a non-documentary security by the following way.The lack of formal entitlement (legitimation) to a non-documentary security of theultimate holder is compensated by an expansive interpretation of the 'corporatestatus' of a person (e.g. a shareholder) using the concept of protected interest (inthe title upon a non-documentary security).A corrective interpretation for such legal terminological inaccuracy is notproposed in practice.

Practical or doctrinal studies of this phenomenon in domesticliterature are rare. At the same time, the draft law6 introduced and considered in thefirst reading (as of March 2018) in the State Duma of the Russian Federation doesnot introduce the necessary clarity into the issue of the distribution of titles to nondocumentary securities in indirect (depository) and other forms of holding.It is also assumed that the general approach to the definition of nondocumentary security as an object of rights7 predetermines the securities holdingsystem. The latter in turn determines the volume and features of the exercising ofthe rights upon a security.

Analysis of the international legal problems of nondocumentary securities holding shows some unique legal problems (or sufficientonly for transnational transactions) and are not yet found in domestic practice8. Atthe same time its examination provides an opportunity to analyze the key concepts                                                            6The draft Federal Law On Amendments to the Federal Law On the Securities Market andCertain Legislative Acts of the Russian Federation Regarding the Improvement of the LegalRegulation of the Securities Emission N 319413-7 (version as adopted by the State Duma in thefirst reading on 24.01.2018), hereinafter – Draft Law N 319413-7.7The definition of the nature of the object predetermines all other methods of regulation. Suchapproach is discovered also in the Explanatory note to the draft Federal Law On Amendments tothe First, Second and the Fourth Part of the Civil Code of the Russian Federation No.

424632-7Availableat:http://asozd2c.duma.gov.ru/addwork/scans.nsf/ID/B91DEDFBCF19B4E04325825C0032641E/$FILE/424632-7_26032018_424632-7.PDF?OpenElement (in Russian)8For example, the Writ of the Supreme Court of the Russian Federation of 09.06.2015 N 11KG15-12 / Legal Reference System 'Consultant Plus'.4  of the theory of securities and securities holding and thus to identify certaineffective ways of its regulation.The present thesis is intended to supplement the literature on this theme. Thestudy presents current securities holding models (indirect, transparent, directholding), as well as problems of the correlation of titles of participants of holdingsystems and the related legal problems.The special emphasis is made on the forms of non-documentary securitiesholding.

Russian researchers usually concentrate either on methods of nondocumentary securities holding in the context of the risks of the owner / holder ofsecurities (the right 'upon securities) or on the essence of securities as a legalconcept (categorization of the right 'to securities'). The complex studies of thementioned problems as a complex and interconnected matter are quite rare indomestic but are familiar in foreign literature. This study offers a comprehensiveanalysis of those two interrelated problems from the position of Russian law, withthe involvement of foreign legislative and practical experience.It is assumed that the study of the above mentioned problems is relevant andapplicable and has both theoretical and practical value.The degree of scientific elaborationMuch attention of domestic scientists during the last 15 years is paid to thedetermination of the legal nature of non-documentary securities as an object of lawas well as the specifics of the transactions with it.

Most of the discussions on thatproblem refer to the period 2000-2010 when securities were introduced in themarket. In the period of 2005-2012 many fundamental researches of the legalnature of non-documentary securities were published: by V.A. Belov9, a series of                                                            9Belov V.A., 2012. 'Non-documentary securities' [Bezdokumentarnye cennye bumagi],Moscow, Yurinfor. Belov V.A., 2007.

'Securities in Russian civil law' [Cennye bumagi vrossijskom grazhdanskom prave], In 2 vol. Moscow, Yurinfor.5  doctrinal works and a doctoral thesis by A.V. Gabov10, numerous papers ofdoctrinal and practical nature by D.I. Stepanov11, L.R. Yuldashbaeva12, theoreticalstudies of the concept and the nature of non-documentary securities by E.