Principles of transferring rights from shares in a joint-stock company. Separation of the provisions of the Commercial Companies Code from the Civil Code in the era of dematerialisation of securities

Abstract

The regulation regarding shares contained in the provisions of the Commercial Companies Code raised a number of interpretative doubts in Polish economic practice. Most of them result from the duality of transferring rights from registered shares and bearer shares, as well as from the determination of the legal nature of the entry in the share register and the application of securities regulations in the Civil Code to matters not covered by the provisions of the Commercial Companies Code. On 30th August 2019, the legislator made a fundamental change to the provisions based on the dematerialisation of shares. According to the new wording of Art. 328 § 1 of the Code of Commercial Companies and Partnerships, the shares are not in the form of a document. The adopted act amending the act — the Code of Commercial Companies and certain other acts therefore provides for the obligatory dematerialisation of shares and the creation of a register of shareholders, the purpose of which is to replace the existing institution in the form of a share book. At the same time, for reasons not fully known, the division of shares into registered and bearer shares was continued. The purpose of the regulation is also to standardise the regime for the transfer of rights from shares, which is to be based on assumptions analogous to those regarding the transfer of rights from securities regulated in the Act on trading in financial instruments. Consequently, the application of a number of provisions regarding the transfer of rights contained in the Civil Code will be excluded.
For the above reasons, the basic question arises whether the provisions of the Commercial Companies Code from 1st January 2021, i.e. from the planned entry into force of the new regulation, will constitute a complete regulation and in its nature separate from the provisions of the Civil Code regarding securities. This study attempts to determine the above dependence. The first part of the study also presents the rules for transferring rights from shares based on still applicable provisions, the purpose of which is to show the complexity of issues and the consequences of introduced changes, as well as interpretative problems that may arise. Of course, it should be noted that the framework of the study does not allow consideration of all aspects of the research topic.