Value right
A value right (a compound of the terms security and law) is a completely " non- denominated" security without securitization . Securities transactions and administration take place without certificates - even without global certificates - the evidence is provided exclusively as credit in a custody account .
history
Since 1872 at the latest, the essence of the term security was characterized by the "embodiment" of an invisible right in a physical security certificate. Laws of securities law still state today that the submission (and surrender) of the document to the issuer or debtor is required in order to assert the right from a security .
For effects, however, this notion is largely outdated. This is because securities custody takes place in a mediatised manner and virtually “without denominations” in complex custody pyramids: at the bottom are the investors who have deposited their securities with a financial intermediary ( custodian bank ). The financial intermediaries form the second level of custody. They are connected to a central securities depository , which forms the top of the safekeeping pyramid. The investor does not have to own the security either to assert the right or to transfer it . These rationalizations were a necessary consequence of the development of the securities system at credit institutions towards mass business. According to today's stock market usage , securities transactions are carried out in securities clearing transactions without any effective transfer , i.e. without physical movement of securities documents. In view of the large numbers of business transactions, an orderly securities system would no longer be conceivable otherwise .
In May 1972, exactly 100 years after the conceptual definition of securitized rights, book-based securities giro transactions were introduced as the normal case with collective giro custody - that is, by simply posting to custody accounts. Collective safe custody was the first step in moving away from “unit-linked” securities transactions. It replaced the transfer of securities from the old to the new owner by transferring shares to a custody account. This was the first step towards value law.
Legal position
If the investor and the custodian bank are resident in a country other than the country in which the value right is located, which he holds in his securities account , the same principles apply as for other securities (if applicable, Central Securities Depository or securities account ).
The German banking supervisory regulations ( Banking Act and Deposit Act ) take account of the non-denominational posting of securities. The definition of the term “security” in section 1 (11) sentence 2 nos. 1–4 KWG makes it clear that no documents need to be issued. The issuers make use of their right to exclude the shareholder or bondholder's right to securitization . However, in the case of shares according to Section 10 (5 ) AktG, only an individual entitlement to securitization is excluded, but not the entitlement to issue a global certificate. The government's justification for the draft law also mentions that shareholders can request certification in a global certificate. This right also results from the DepotG ( § 2 DepotG, § 5 DepotG and § 9a DepotG) and cannot be removed by the exclusion in accordance with the Articles of Association.
Therefore, in Germany, global certificates are only waived in the area of bonds because there are no corresponding bond-specific regulations. In particular, the federal government, as debtor of federal bonds, makes use of this option. The federal debt register acts as a public register for federal stock rights . However, public does not mean that the register is accessible to everyone; regulations approximating banking secrecy apply . The entries enjoy public faith . This applies in particular to the transfer of a value right. The person registered in the debt register acquires the value right even if the creditor registered before him was not entitled to it. This means that these stock rights are also equated with rights from bearer securities ( Section 935 (2) BGB) by legal fiction . This also applies to state debt registers for federal state bonds. Due to legal fiction, disposals of stock rights are made according to property law principles, although an item no longer exists.
The unsecuritized shares or bonds cause a “disembodiment” (the classic security term speaks of “embody”) of the securities transaction without the originally documented rights losing their core property law content. Like physical securities, stock rights can be assigned, pledged or attached and are the subject of segregation in the event of the insolvency of the custodian bank.
Stock rights can either be stored directly with the issuer in the personal account of the owner (e.g. individual debt register account at the Federal Finance Agency) or through collective safe custody in a collective account (e.g. the collective account of the Clearstream central securities depository at the Federal Finance Agency). The depository credit means that the account holder acquires ownership in accordance with Section 929 sentence 1 BGB, and a lien can also be ordered as collateral in accordance with Section 1205, Paragraph 1 BGB as a security deposit; this is a legal transaction. In addition, there is the subsidiary legal acquisition of ownership under Section 24 (2) sentence 1 DepotG, according to which co-ownership of the collective holdings is to be transferred to the custodian customer when the transfer note is entered in the custodian bank's safekeeping book.
Bookings for book-entry securities are made in the same way as on a normal current account . A credit (through purchase of securities or other transfer) leads to or increases the credit ( ownership of securities), a charge (through sale of securities or other transfer) reduces the credit.
International
With the entry into force of the Swiss Federal Law on Book Securities ( BEG ), the value right was added to Art. 973c of the Swiss Code of Obligations (OR) , according to which for the first time it is explicitly permitted to issue book value rights with the same function instead of physical securities or to convert existing securities into value rights. A value right can therefore be characterized as a dematerialized security. The prerequisite for the creation of stock rights is either the authorization to issue such stock rights in the company's articles of association or the issuing regulations, or the consent of the security holder.
A distinction must be made between the book securities according to Art. 3 BEG, defined as justifiable claims or membership rights vis-à-vis an issuer, which are credited to a securities account and which the account holder (= shareholder) can dispose of. According to the law, book effects arise with the deposit of physical securities for collective safe custody, with the deposit of global certificates or with the entry of value rights in the main register, provided that a credit is made in a securities account at the same time ( Art. 6 BEG). The issuer of existing book-entry securities, securities held in collective custody or global certificates can also convert these into book effects at his own expense if neither the issuing conditions nor the company's articles of association conflict with the conversion ( Art. 7 BEG).
In Austria , the value right is equated with the provisions on collective safekeeping and procurement of ownership of collective inventory. According to § 24 lit. c DepotG 1969 also for federal debt register claims. The transition from “security to value right” is being planned. The Austrian legislator is planning a complete transformation from securities to value rights created in digital registers and transferable through bookings. For this purpose, the Austrian Federal Ministry of Finance has set up a subgroup of the FinTech Advisory Board to deal with the topic of “dematerialization of securities”.
Individual evidence
- ↑ Ulrich Seibert, The Exclusion of the Shareholder's Securitization Claim in Legislation and Practice , DB 1999, pp. 267, 269
- ^ Jan Wilhelm, Corporation Law , 2009, p. 238.
- ↑ BT-Drs. 12/6721 of February 1, 1994, draft law for small stock corporations and for the deregulation of stock corporation law , p. 6
- ↑ BGHZ 5, 27 , 31
- ↑ Hans Josef Wieling, Property Law , 2007, p. 113 f.
- ↑ Reinhard Ege: The conflict of laws of indirectly held securities. De Gruyter Recht / Berlin, 2006, p. 113, ISBN 978-3-89949-365-8 ,
- ↑ Shivam Subhash / Peter Knobl, The creation and transfer of value rights via blockchain technology , in: Wirtschaftsrechtliche Blätter, Issue 11, November 2019, p. 612 ff.
