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Murod Choriev Military-Technical Institute of the National Guard of the
Republic of Uzbekistan, Professor of "General Legal Sciences", Ph.D in Law.
THE PECULIARITIES OF THE GIFT OF SECURITIES
M. Choriev
Abstract: The article analyzes the specifics of securities donation using
the scientific literatures and law sources.
Keywords: Civil code, law, rights, civil law, contract.
In accordance with the Civil Code of the Republic of Uzbekistan, any
property that has not been withdrawn from circulation, in particular any
property and property rights may be the subject of a gift contract. Securities
are also treated as an object of civil law and participate as a subject of
various transactions. The gift of securities has its own peculiarities, which
are manifested in the following:
First, the gift of a security is not the purpose of the gift agreement (i.e.,
the transfer of the thing as property). The purpose of this transaction is to
transfer the right of claim arising from the donated security.
Second, the division of securities into documentary and uncertificated
securities will also have a specific feature in gifting them depending on the
type of specificity. According to Article 96 of the Civil Code of the Republic
of Uzbekistan, documents confirming property rights in accordance with the
established form and mandatory details are securities, and these rights can
be exercised or transferred to other persons only if they are presented. As
soon as the securities are transferred to another person, all the rights
confirmed by them also pass to that person.
It should be noted that the gift of securities is becoming increasingly
important in today's evolving economic relations, as evidenced by the
growing participation in civil transactions not only of property, but also of
property rights, including securities expressed in special documents.
Although the subject of the gift agreement is a security, the conclusion
of the transaction also provides for the transfer of the right to the recipient
of the gift along with the security. The gift of securities is made by the owner
or his authorized representative, and these persons are considered donors.
The recipient of the gift is a person who meets the requirements of the
norms of the FC of the Republic of Uzbekistan on legal capacity.
In accordance with Part 1 of Article 4 of the Law of the Republic of
Uzbekistan "On Securities Market", securities may be undocumented in the
form of records in the form of documentary and electronic records in the
form of blanks, depending on the form of issue.
A security is a movable property in the form of a document in
accordance with Article 96, Part 3 and Article 83, Part 4 of the Criminal Code
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of the Republic of Uzbekistan, and the right expressed in the security may
belong to movable and immovable property (for example, the right of claim
against mortgaged real estate). On this basis, in accordance with Part 1 of
Article 502 of the Civil Code of the Republic of Uzbekistan, the subject of the
contract for the gift of securities is "delivery of the goods." If the subject of
the gift agreement is the right of the giver of property (claim) against
himself, as A.L. Makovsky points out, the gift of such a right of claim does not
meet the requirements of the gift of the right of claim through a security, for
example, a promissory note. Although the circulation of uncertificated
securities and non-cash money is an objective necessity in civil circulation,
the circulation of cash and documentary securities is distinguished by its
distinctive features. Due to the "materialization" of documentary securities,
Braginsky and V. Vitryansky believe that if an undocumented security is
donated under the contract, it is possible to talk about a different subject of
the gift contract. They state: "... if the recipient is given a property right
(demand right) in the form of a security, and these securities are in an
undocumented form, the object of transactions with such securities is not
the securities, but the rights arising from it." In our opinion, the authors have
omitted one aspect: if the transfer of property rights is made by gift of an
undocumented security, its form of undocumented registration in the
contract denies the transfer of the thing or the right to it and always implies
the transfer of rights to the right.
The form of conclusion and implementation of the contract of gift of
securities is the same as the procedure for waiver of the right to securities
in favor of other persons. If the security to be presented is being handed
over, it is sufficient to hand over the gift in order to execute the gift
agreement.
Gifting securities with the owner's name on them is a bit complicated. In
accordance with Part 1 of Article 3 of the Law of the Republic of Uzbekistan
"On Securities Market",
share - an indefinite, registered security, confirming the right of its
owner to receive part of the profits of the joint-stock company in the form of
dividends, to participate in the management of the joint-stock company and
part of the property remaining after its liquidation. In accordance with
Article 5, Part 3 of the Law of the Republic of Uzbekistan "On Joint Stock
Companies and Protection of Shareholders' Rights", shareholders have the
right to transfer their shares to another person without the consent of other
shareholders and the company. This means that, with some exceptions in
the law, a shareholder is free to donate his or her shares and has no
obligation to other shareholders.
In accordance with Part 1 of Article 16 of the Law of the Republic of
Uzbekistan "On Securities Market", the conclusion and registration of
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securities transactions in the organized sale of securities is carried out
electronically without the need for their written (paper) registration. Other
securities transactions are made in writing and must be registered in the
manner prescribed by law.
Hence, based on this rule, a contract for the gift of securities is concluded
in a simple written form. The contract of gift of securities with the name of
the owner must indicate the name of the issuer, the parties to the contract
and the number, type and nominal value of the securities in order to clearly
identify the subject of the contract. The securities gift agreement must also
be registered in the prescribed manner.
In particular, in accordance with paragraph 2 of the Regulation "On the
accounting register of over-the-counter securities transactions" approved
by the order of the Director General of the Center for Coordination and
Control of Securities Market under the State Property Committee of the
Republic of Uzbekistan dated March 4, 2009 No 18-18. Over-the-counter
securities transactions are made in writing and must be registered in the
following cases in the manner prescribed by this Regulation:
when securities are alienated to their first owners by concluding
relevant agreements;
redemption of its shares by a joint-stock company at the request of
shareholders;
when securities are included in the charter capital of legal entities;
in exchange;
when a gift is given;
when inherited;
when pledged;
when over-the-counter transactions are concluded with other securities
that lead to the change of ownership.
The gift agreement concluded on securities is registered by the Central
Securities Depository or investment intermediary in the "Accounting
register of over-the-counter securities transactions".
In accordance with Part 1 of Article 503 of the Criminal Code of the
Republic of Uzbekistan, the recipient has the right to refuse the gift at any
time before it is handed over to him. In this case, taking into account the
special procedure for the transfer of securities, until the relevant entry or
issuance of a certificate in the prescribed manner by the registrar on the
transfer of ownership of the documentary security with the name of the
owner, and for rights to uncertificated securities to the depository account
the recipient may reject the gift of securities until it is entered.
In short, the gift of securities is due to the fact that it is a specific object
of civil law and is regulated by separate legislation in addition to the
provisions of the Civil Code on the gift.
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References:
1.Ўзбекистон Республикасининг “Қимматли қоғозлар бозори
тўғрисида”ги қонуни // Қонун ҳужжатлари маълумотлари миллий
базаси // https://lex.uz/docs/2662539
2.Маковский A.Л. Дарение. Комментарий к гл. 32 ГК//Гражданский
кодекс Российской Федерации. Текст, комментарии, алфавитно-
предметный указатель/Под ред. О.М.Козырь, А.Л.Маковского.,
С.А.Хохлова. –М., 1996. –С. 303.
3.Брагинский М.И., Витрянский В.В. Договорное право. Книга 2.
Договоры о передаче имущества. Изд. 4-е стереотипное. —М.: Статут,
2002. –С. 344.
4.Ўзбекистон Республикасининг “Қимматли қоғозлар бозори
тўғрисида”ги қонуни // Қонун ҳужжатлари маълумотлари миллий
базаси //
5.Ўзбекистон Республикасининг “Акциядорлик жамиятлари ва
акциядорларнинг ҳуқуқларини ҳимоя қилиш тўғрисида”ги қонуни /
Қонун
ҳужжатлари
маълумотлари
миллий
базаси
//
6.Қаранг:
Ўзбекистон
Республикасининг
“Акциядорлик
жамиятлари ва акциядорларнинг ҳуқуқларини ҳимоя қилиш
тўғрисида”ги қонуни 6-моддаси / / Қонун ҳужжатлари маълумотлари
миллий базаси //
7.Ўзбекистон Республикасининг “Қимматли қоғозлар бозори
тўғрисида”ги қонуни // Қонун ҳужжатлари маълумотлари миллий
базаси //
8.Ўзбекистон Республикаси Давлат мулки қўмитаси ҳузуридаги
Қимматли қоғозлар бозори фаолиятини мувофиқлаштириш ва
назорат қилиш маркази Бош директорининг 2009 йил 4 март 2009-18-
сон буйруғи билан тасдиқланган “Қимматли қоғозлар билан биржадан
ташқари битимларнинг ҳисоб регистри тўғрисида”ги Низом / Қонун
ҳужжатлари
маълумотлари
миллий
базаси
//
https://lex.uz/docs/1451544?ONDATE=12.03.2019
