.
  .




M.Titarenko,
SENIOR RESEARCH FELLOW,
THE RUSSIAN ACADEMY OF JUSTICE



PROBLEMS OF EFFECTIVENESS OF REGULATION OF LEGAL PROCEDURE RELATED TO RESTORATION OF RIGHTS UNDER LOST DOCUMENTS


      At present, issues of accessibility and effectiveness of justice in ex parte cases remain acute. In particular, not too long ago common courts declined to apply a procedure of restoration of rights under lost securities to bearer or to order. A person who has lost such a security was actually denied the possibility to restore his rights thereunder. Such problem existed exclusively because of lack of the relative federal statutory judicial procedure.

      Moreover, taking into account the reference rule of Art. 148 of the Civil Code of RF (hereinafter - the CC of RF) (1994), common courts started applying the procedure of restoration of rights, as prescribed by chapter 33 of the Code of Civil Practice of RSFSR (hereinafter - the CCP of RSFSR), also to lost securities made out to order or bearer.

      The change of the courts attitude towards this issue has, quite evidently, removed the problem of accessibility of justice in such category of cases. The existent procedure is applied, in full and without any exemptions, by analogy to securities made out to bearer or to order. At the same time, the problem of effectiveness of justice has become more acute.

      As is well known, the current Civil Code of Russia, namely Art.148, contains the reference rule and provides for the judicial procedure of restoration of rights under lost bearer securities. At the same time, the order provided for by Chapter 33 of the CCP of RSFSR prescribing the relative judicial procedure for restoration of rights under lost bearer instruments is used. In practice, the rules of Chapter 33 of the CCP of RSFSR are also applied, by analogy, to restoration of rights under lost securities to order until respective amendments thereof and addenda thereto are enacted.

      While the CC of RSFSR of 1964 was in force, its rules were mostly applied to restoration of rights under savings bankbooks and receipts of deposited bearer public bonds.

      Lately, in connection with intensive use in the economic turnover of different kinds of securities to bearer and to order, it has become evident that of the procedure stipulated in Chapter 33 of the CCP of RSFSR applied only by analogy to restoration of rights under lost securities cannot but bring about a number of essential problems in the enforcement practice. Besides, the kind of securities (to order or to bearer) does not actually matter much in this case. Any complications arising in every case are extremely significant.

      Let us consider, as an example, some problems arising in restoration of rights under a lost bill with a simple or blank endorsement through the legal procedure of restoration of rights under lost bearer instruments.

      First of all, the following should be taken into consideration. As soon as a court delivers, pursuant to Art. 280 of the CCP of RSFSR, a judgment on issue of a new bill instead of the one recognized as invalid, the following question arises: What kind of a bill should the new one be? The problem here lies in that the bill drawer cannot issue the exact duplicate of the lost bill. It is explained by that the holder of the lost bill received by endorsement has the rights of a different scope as compared with the first bill purchasers rights. The bill drawer may only issue a new bill in favor of the person who has declared the loss. When drawing such duplicate, the bill drawer should indicate the remittee, otherwise it will be contrary to the rule of Art. 75 of the Provision On a Bill of Exchange and a Promissory Note.

      Hence, the person who has declared the loss of a bill receives, as a result of the judgment, a security which differs essentially from the lost one. In particular, the lost bill with a blank endorsement was a bearer security, whereas the bill received pursuant to the judgment is a security to order. The billholder is no more able to exercise his rights of a holder of a bill with a blank endorsement provided for by Art. 14 of the Provision On a Bill of Exchange and a Promissory Note. Besides, pursuant to Art. 43 of the Provision, he is also deprived of the possibility to file an action against the endorsers named in the lost bill, since the entire list of the endorsers named therein cannot be known to the bill drawer. Therefore, neither of the endorsers will be indicated in the duplicate.

      Hence, the person who has declared the loss will receive, according to a judgment, a security of another kind presupposing quite another set of rights as compared with the lost one.

      It seems that such consequences might be avoided if only all the endorsements written in the lost copy of the bill are indicated in the bill issued anew. Then all the endorsers, along with the billholder, should be involved in the legal procedure of the lost rights restoration. However, even such difficult procedure may be unrealizable in case, for example, there is no information about one of the endorsers, or in case of a demise (of a natural person) or a dissolution (of a legal entity). Then it becomes impossible to restore the chain of endorsements.

      Difficulties arise not only in restoration of rights under bills. Considerable problems exist in restoration of rights under lost cheques pursuant to the legal procedure of the lost rights restoration. The matter concerns bearer cheques. As soon as a judge takes over a claim seeking recognition of the lost instrument as invalid, pursuant to Art. 276 of the CCP of RSFSR he delivers a determination prohibiting the institution that has issued the instrument from effecting payments thereunder.

      At the same time, by virtue of a special composition of subjects of settlements by cheques, a payer, in any case, would be a bank or a credit institution, and not the person who has issued the cheque. The latter cannot be a payer under a cheque.

      Under such circumstances the court determination should have prohibited a bank or another credit institution from paying it rather than the person who has issued the cheque.

      Similar difficulties arise also in those cases when the payer under the lost bill is not the bill drawer, but a third person. The delivered determination prohibiting the bill drawer from paying it does not entail any consequences, since the payment in this case will be effected by a third person, for example, by a guarantor.

      In this connection, it is expedient to keep in mind the former legal regulation. Thus, the CCP in versions of 1950 and 1957, as distinct from the current CCP of RSFSR, contained the most universal rule. In particular, Art. 234-c authorized a court, after taking over an application following the legal procedure of restoration of lost rights, to prohibit the persons obligated under the instrument from effecting payments thereunder. Hence, the judge should have determined on his own the person having obligations under the lost instrument, and the latter was not necessarily be a person who had issued the instrument, as it was rightly mentioned above. The above structure, rather than that stipulated in the CCP, seems to meet the present-day conditions and requirements better.

      No less questions arise in an action of unfounded property acquisition filed pursuant to Art. 281 of the CCP of RSFSR and Chapter 60 of the CC of RF against a person who is recognized as entitled to get a new bill. The right to file such action belongs to a security holder who has failed for some reason to declare in time his rights to this instrument. In this case the situation becomes more complicated since consideration of such disputes requires application of the rules of the Provision On a Bill of Exchange and a Promissory Note concerning recovery of bills (notes). As is known, the rules of the bill law differ in this respect from the common civil rules established by Art. 302 of the CC of RF. Besides, when filing an action of unfounded enrichment, it is necessary to take into account that the respondent in such action has a bill which principally differs from the lost one for the aforementioned reasons.

      Besides, the security holder who for some reasons has failed to declare in time his rights therefor, must keep in mind that when filing an action of unfounded enrichment pursuant to Art. 281 of the CCP of RSFSR with respect to bearer securities, the rule of para. 3, Art. 302 of the CC of RF (The bearer securities cannot be taken away from a bona fide purchaser) should not be overlooked.

      Unfortunately, the draft new CCP of RF does not differ principally from the current CCP of RSFSR with respect to the legal procedure of lost rights restoration . Therefore, adoption of the new CCP of RF in the present version will not make it possible to solve the problem of effectiveness of justice in this category of cases. It seems that the increase of the number of objects for which restoration of rights through the legal procedure of the lost rights restoration is envisaged, necessitates the use of more universal rules applicable not only to a particular kind (type) of securities. It is important that a court could, on its own, determine the necessity to perform one or another action within the framework of the legal procedure of the lost rights restoration since, as follows from the above examples, excessive formalities in such cases are hardly acceptable.


   .
  .