Exhibitor (certificate)
Exhibitors ( English issuer, drawer ) a certificate is who is embodied in the document declaration by virtue of his signature must be imputed because he is mentally behind the certificate and at their content feels bound.
General
The term “issuer” is closely related to the term “certificate”. A certificate as an embodied statement of thought must also regularly reveal its issuer ( guarantee function of the certificate). The document as an object of the crime is also to be designated as genuine under criminal law ( forgery of documents ; Section 267 StGB) if it comes from a recognizable issuer. According to the theory of spirituality, the issuer is the person who stands behind the explanation of ideas, to whom it can be assigned (e.g. the board of directors of a legal person signs, the legal person is considered to be the issuer) and not the person who creates the certificate. According to the theory of spirituality, the real issuer of a certificate is whoever accepts it as his declaration, acknowledges it and feels bound by it. Any instrument spread appears that their exhibitors to a performance is required. The issuer is the legal entity who issues and issues the document or has it issued by other legal entities.
Legal issues
The legal term issuer is often used in law. So generally required to § 126 para. 1 BGB that in writing the document by hand by the exhibitor by name or signature by a notary certified hand signal must be signed.
Civil litigation
Under civil procedure law , a document is issued by anyone who signs, be it their own text or someone else's text. In the case of private documents, the authenticity of the signature is particularly important; the above text is subject to the (rebuttable) legal presumption that it is also genuine ( Section 440 (2) ZPO). If the authenticity is disputed, the party burdened with evidence must prove the authenticity with the help of the usual evidence (e.g. by written comparison; § § 441 , § 442 ZPO). For documents without a signature, the presumption of authenticity in Section 440 (2) ZPO does not apply. This provision also shows how important the signature of the exhibitor is to the legislator. According to Section 416 of the German Code of Civil Procedure (ZPO), a private document signed by the exhibitor himself provides full evidence that the declaration contained therein was made by the exhibitor.
According to Section 415 of the German Code of Civil Procedure (ZPO), a public document is a document that has been drawn up by a public authority or a notary within the limits of official authority in the prescribed form and that has full evidential value of the content. The (rebuttable) presumption of authenticity of Section 437 ZPO applies to them . The notarial public certification is also a public document, but the certified text is a private document. Their (rebuttable) presumption of evidence is regulated in § 416 ZPO, the presumption of authenticity in § 440 para. 2 ZPO. The prerequisite for this is that it is signed by the exhibitor or his hand sign is notarized.
Securities law
Documents in which property rights are documented are of particular importance. In the case of property rights documents, the so-called securities , the issuer assumes a property law obligation. According to the prevailing opinion , the issuer of securities is already liable if he signs them. After all, after the creation theory has been abandoned, it is no longer necessary to “put a security on the market”; its loss already triggers its liability. In order to justify the obligation in terms of securities, an issuing agreement is required in addition to the issue ; however, if this is not the case, someone can still purchase the issued security in good faith . The provisions of Section 794 (1) BGB and Section 935 (2) BGB also make the exhibition sufficient for the exhibitor's liability. In accordance with Section 794 of the German Civil Code (BGB), the exhibitor is also obliged to issue a bearer bond if it has been stolen or lost or if it has otherwise entered the market without his will.
In terms of securities law, there is the issuer of bills of exchange , checks and other securities. In connection with securities , the issuer is called the issuer . All signatories of securities certificates are considered to be their issuers. In the case of securities, the main function of the issuer is to assume an obligation or to be financially liable. In the case of bonds , the issuer is the debtor; in the case of shares , the issuer assumes obligations under stock corporation law towards the shareholder . According to the (now abandoned) creation theory, the right arose from a security through a unilateral declaration of commitment by the exhibitor, according to which the exhibitor is liable according to the paper.
Bearer papers
According to § 796 BGB, the issuer can only raise three objections to the holder of a bond:
- with regard to the validity of the certificate: the certificate is forged or falsified, the exhibitor was incapable of doing business at the time of issue , had no power of representation or the certificate was drawn up under duress ;
- With regard to the text of the document: if the document relates to an issue prospectus, objections resulting from the prospectus are possible.
- to which the exhibitor is entitled to the owner
In doing so, the issuer undertakes to make payments to each presenting holder of the bond, unless he knew or should have known that the holder was not entitled.
In mass effects of the frame is giro transfer by the issuer only a global certificate ( global certificate ) to § 9a prepared Custody Act in the Wertpapiersammelbank is to be deposited. An effective delivery of individual shares or bonds is then excluded, unless the issuer is obliged according to the underlying legal relationship to issue individual securities to the holders of the rights evidenced in the global certificate (Section 9a (3) DepG).
Order papers
The term issuer is used expressly in special laws that affect order papers . In the case of checks ( Art. 1 No. 6 SchG) and bills of exchange (here it is called Trassant ; Art. 1 No. 8 WG), the signature of the issuer is one of the legal components, without which these documents are invalid ( Art. 2 Para. 1 SchG and Art. 2 Para. 1 WG). In the event of a change, its issuer is liable for the acceptance and payment of the change in accordance with Art. 9 Para. 1 WG. This is the core of the so-called creditor liability in the event of a change, according to which the change taker only needs to rely on the solvency of the issuing creditor . When changing, however, it is not the exhibitor who is liable to pay , but primarily the drawee , who is obliged to pay by accepting the change ( Art. 28 Para. 1 WG). According to Art. 31 Para. 3 WG, the mere signature on the front of the bill of exchange counts as a declaration of guarantee, unless it is the signature of the exhibitor or the drawee.
The signature of the drawee is not legally required for a check because only credit institutions may act as drawee . The credit institution's payment obligation arises from a check contract with the issuer, who for this reason must maintain a current account with the institution ( Art. 3 SchG). In the check contract, which is part of the general terms and conditions of the credit institutions , the bank undertakes to cash the checks presented under certain conditions.
Particularly with born order papers that are in circulation, caution is required when signing. The issuer of an endorsement is called an endorsement and is usually liable for redemption in the event of a change. If the issuer adds a positive order clause to approved order papers, this only turns them into order papers that can also be transferred by endorsement. Without this clause, they remain recta papers ; the issuer thus decides on their fate under securities law when the order papers are awarded.
Circulation
As a rule, the issuer of a security certificate is also the one who deliberately places the certificate on the market, i.e. gives it publicity by handing it over to third parties. In the case of bearer and order papers, it is no longer up to the issuer after handover to whom the security is transferred. Every legitimate holder of a security can demand the performance promised in the security from the issuer by presenting the certificate (exceptions: check and bill of exchange, in this case the drawee is liable to pay; Art. 28 para. 1 WG). Since it is a matter of monetary debts, the exhibitor has to provide the promised service at his own risk and expense to the creditor at his place of residence or business ( Section 270 (1) BGB). However, this regulation on the place of payment does not make the debt an obligation to deliver , but rather, because the place of performance remains with the debtor, a "qualified obligation to send ". In the case of checks and bills of exchange, according to Art. 2 Para. 3 SchG and Art. 2 Para. 3 WG, the place of payment is the drawee's place of business. The legal domicile of the exhibitor is decisive for announcements in the case of securities ("home exchange"; Section 3 (1) WPUmstG).
Individual evidence
- ^ Erwin Jacobi, in: Festschrift for Victor Ehrenberg , 1926, p. 235 f.
- ↑ Springer Fachmedien Wiesbaden (ed.), 280 keywords lending business: basic knowledge for professionals in the financial sector , 2019, p. 8 f.
- ↑ Boris Schinkels, The Distribution of Liability Risk , 2001, p. 41
- ↑ Eva Micheler: Securities Law Between Obligations and Property Law , 2004, p. 81 f.
- ^ Eva Micheler: Securities Law Between Obligations and Property Law , 2004, p. 84 f.
- ↑ Gunnar Heinsohn / Otto Steiger, property-interest-money, unsolved problems of economics , 6th edition 2009, p. 289
- ↑ BGHZ 34, 179
- ↑ Dieter Krimphove, HGB , 2005, p. 140
- ↑ The only exception is registered shares with restricted transferability , whose transfer of ownership requires the consent of the exhibitor (“registered shares with restricted transferability”, Section 68 (2) AktG). This regulation was deliberately created to give the exhibitor a control option.
