Accrual of the Property Right on The Shares Placed Among the Founders of a Joint-Stock Company
There known schemes when in non-monetary payment for shares placed among the founders of a joint-stock company a barter is executed by and between a joint-stock company, which has been just created, and its founder (shareholder). Pursuant to such barter the joint-stock company, the issuer, transfers the shares issued during the company incorporation to the ownership of its founder, and the latter, in return therefor transfers to the former, for example, other shares held by him. Execution of such contracts is not in line with laws.
Pursuant to para. 2, Art. 51 of the Civil Code of the Russian Federation (the CC of RF) a legal entity is deemed created as of the moment of its statutory registration. The analogous rule of Art. 8 of the Federal Law On Joint-Stock Companies stipulates creation of joint-stock companies.
According to para. 2, Art. 25 of the Federal Law On Joint-Stock Companies all shares of a company must be placed among its founders during its incorporation. Para.1, Art. 27 of the above Federal Law stipulates that the company's charter must determine the quantity and par value of shares acquired by shareholders (placed shares), and the rights conferred thereby. Lack of such stipulation in the company's charter filed with a registration body may give grounds for refusal to register the joint-stock company.
Thus, placement of all shares of a joint-stock company among its founders before its registration is a condition requisite for its incorporation. As regards the statutory registration of an issue of shares to be allotted to the founders of a joint-stock company during its incorporation, it is effected after the statutory registration of the joint-stock company as a legal entity upon factual allotment of the shares to its founders.
Here arises the question as to application of the rule of Art. 28 of the Federal Law On the Securities Market pursuant whereto holders' rights on securities issued in the non-documentary form (this is one of the mostly spread case in Russia) are certified during the statutory registration with respective entries in personal accounts kept by the registrar or in case the rights on securities are recorded in the depository - by entries in the custody accounts kept therein.
It is necessary to keep in mind that pursuant to Art. 2 of the Federal Law On the Securities Market placement of issued securities means disposition of the securities by the issuer to first holders through civil transactions. Therefore, in our opinion, the legislator does not connect the fact of acquisition of rights on shares by the founder of a joint-stock company effected during the company incorporation with the moment of making a respective entry in the register of shareholders. The reason thereof is clear: already from the moment of incorporation of a joint-stock company all its founders exercise shareholders' rights to govern the company participating in General Shareholders Meetings, deciding on formation of the company's executive bodies and on election of members of the Board of Directors (the supervisory board). These rights may be exercised even before respective entries are made in the register of shareholders.
It is possible to infer from the aforesaid that the rights on shares are acquired by the founders as soon as the statutory registration of the stock-joint company has been effected whereby the founders acquire the status of shareholders.
This inference is important for our analysis since it can make us certain about impossibility of conclusion of the above mentioned barter. A joint-stock company being an issuer during its incorporation is at no time an owner of the shares allotted to the founders since the rights thereon accrue for the founders as soon as they are issued. Hence, in this case the joint-stock company, an issuer, not owing the shares issued thereby, can neither dispose of nor exchange these shares under a barter (Art. 209 of the CC of RF). There is simply no subject in the barter since both packages of the shares to be, allegedly, exchanged, on the moment of the barter execution are owned by the founder of the company, i.e. only by one party.
Reverting to the definition of the "placement of issued securities" as given in Art. 2 of the Federal Law On the Securities Market, it is necessary to answer the question what civil transactions are in view when the matter concerns placement of shares among the founders of a joint-stock company during its incorporation. In our opinion, the matter is about a joint-stock company foundation transaction formalized in a foundation agreement made by the founders following para. 5, Art. 9 of the Federal Law On Joint-Stock Companies, and there is no need in and cannot be any other agreements (including barters) about payment for placed shares by other shares. There is perceived a certain non-compliance of the above inference with the rule defining "placement of issued securities" which may be construed as if it is the issuer who should dispose of the securities to first holders. Such discrepancies in laws are not rare. However, in this case it is not expressed clearly that a civil agreement must be made indispensably between an issuer and a first holder, that allows to assert that the peculiarities established by the above cited rules of the Federal Law On Joint-Stock Companies are priority when the matter is about shares placement during a joint-stock company incorporation.
As noted above, the rights on shares to be placed during a joint-stock company incorporation accrue for the founder as of the statutory registration of the company. However, the laws set forth certain constraints of these rights with respect, first of all, to the possibility to dispose of these shares and to consummate other transactions therewith.
As is well known, pursuant to the general rule of para. 1 and 2, Art. 209 of the Civil Code of the Russian Federation the right to dispose of property belongs to the property owner. Pursuant to the above mentioned Art. 28 of the Federal Law On the Securities Market and para. 1, Art. 44 of the Federal Law On Joint-Stock Companies the property right on shares must be acknowledged by joint-stock companies registration bodies. Para. 2, Art. 5 of the Federal Law On Protection of Rights and Lawful Interests of Investors in the Securities Market stipulates that securities holders are prohibited from consummation any transactions with their securities until these are paid in and reports on issue thereof are made. Besides, it should be noted that pursuant to para. 12.1. of the Standards of shares issue during a joint-stock company incorporation, issue of additional shares, bonds, and prospectuses thereof, approved by the Decree of the Federal Commission for the Securities Market of Russia (the FCSM of Russia) dated 11.11.1998, No. 47, registration of the outcome of an issue of shares allotted to the founders of a joint-stock company during the company incorporation concurs with the statutory registration of the shares issue.
Thus, a shareholder gains, without exceptions, all rights on the shares acquired during the joint-stock company incorporation, including the right to dispose of these shares and consummate other transactions therewith, after these shares are paid in, a report on the shares issue outcome is registered, and respective entries about ownership of these shares by a shareholder are made in the register of shareholders.
As is obvious from the foregoing the law highlights payment for shares when determining the scope of powers of a shareholder - the founder of a joint-stock company. This issue is of great practical importance, first of all, for potential shares acquirers who are anxious that a prospective transaction be legitimate.
There are cases when the founder, after the statutory registration of a joint-stock company, refused to pay for the shares of the just created company. Besides, in one of such cases payment was to be made by the founder's other shares of greater value. The managers of the joint-stock company - the shares issuer, assumed that the founder's undertaking to pay for the company's shares by other shares was sufficient to start implementing preliminary agreements, and without the founder's knowledge executed a shares barter and transfer instructions, affixed thereto a facsimile seal of the General Director, the founder, and on the basis thereof caused the shares reregistered in the register of shareholders. "The so acquired", actually stolen, shares were later on resold, which was just the object of the whole "operation". Unfortunately, such examples are not rare, and as is known from the press, the object of such unlawful actions is also shares of nationally known joint-stock companies.
The following should be taken into consideration here. As follows from para.2, Art. 307 and Art. 309 of the CC of RF the law differentiates the notions "rise" and "performance" of an obligation. Besides, Art. 310 of the CC of RF admits recession from an obligation in cases provided for by the law. Para 4, Art. 34 of the Federal Law On Joint-Stock Companies establishes legal effects for a default in payment for shares. So, the legislator admits that a founder, who has signed a foundation agreement, may default on payments for shares. In this case the property right on the outstanding shares passes to the company, and these shares must be sold not later than within one year following acquisition thereof. Hence, the legislator, admitting the possibility of a founder's refusal to pay for shares, protects interests of a joint-stock company.
Para.3, Art. 8 of the Federal Law On the Securities Market stipulates that securities transfer instructions are a document requisite for making an entry about securities right assignment into the register of shareholders. Pursuant to para 3.4.2. of the Regulation On Keeping a Register of Registered Securities Holders (approved by the FCSM of Russia No. 27 dated 02.10.1997) transfer instructions must be signed by a registered person transferring securities or his authorized deputy. Besides, availability of a ground for an entry to be made in the register (for example, a civil contract) is a requisite for transfer instructions, that follows from the supplement to the Regulation of a register keeping where model transfer instructions are given.
The issue of possibility to use a facsimile signature of the sole executive body of a business entity in documents execution requires special attention, since this "instrument" is very often used by swindlers for some reasons, the following two whereof are main. First, since a facsimile signature is very difficult to be discerned with unaided eye from an autograph, a registrar, as a rule, re-registers without hesitation shares unto another person by making respective entries in the register. Second, use of facsimile signatures hinders detection of persons who have committed an unlawful act.
Para. 2, Art. 160 of the CC of RF should be applied to the above mentioned cases, pursuant whereto facsimile reproduction of a signature with the help of mechanical or other copying facilities in consummation of transactions is admitted in the cases and according to the procedure provided for by law, other regulations, or parties' agreement thereof. The possibility and the procedure of a facsimile signature use in consummation of shares transactions are not stipulated by any law or regulation. In the case under review there was no parties' consent to use a facsimile signature in the barter. Therefore, the barter whereto the reference in the transfer instructions as to the ground of their delivery is made has not been lawfully signed by the company - the founder, and is deemed to be not concluded.
As a rule, in arbitration consideration of such cases originals of forged documents bearing a facsimile signature are not submitted to the arbitration court, and respondents present notarized copies to establish a defense. The aim is, in particular, to hinder and to render an expert examination impossible. Here, Art. 77 of the Fundamental Laws of RF On Notariat should be applied which stipulate that a notary public is entitled to certify the authenticity of copies of submitted documents and statements therefrom provided that these documents should be in line with legislative acts of the Russian Federation. The Federal Notarial Chamber is of an opinion (published in Rossiiskaya Yustitsiya (Russian Justice), No. 10, 1999) that if a document to be notarized does not stipulate that a facsimile signature may be used in consummation of transactions, a notary public has no right to certify authenticity of a copy thereof. Hence, in such a case notarized copies of a barter and transfer instructions cannot evidence lawfulness of shares rights assignment to another person.
Therefore, only an original of transfer instructions signed by an authorized person and delivered subject to a lawfully consummated transaction may be an evidence of a shareholder's will to assign the rights on shares to another person. In the described scheme the sole executive body of the company - the founder, did not sign the transfer instructions for assignment of rights on its shares to the newly created joint-stock company. Since "the acquirer" of the shares actually owned them unlawfully so he had no right to dispose of them (Art. 209 of the CC of RF), the shares transactions consummated later on are void by virtue of Art. 168 of the CC of RF.