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The contemporary world of investments and finance is undergoing significant growth, with debt securities playing a crucial role as tools for corporate financing and potential sources of gains for investors. This article aims to comprehensively present the topic of debt securities and provide an analysis of the process of enforcing claims arising from them, considering the currently applicable regulations.
Debt Securities – Definition
According to the current regulations of the “Securities Trading Act,” debt securities can be identified as:
- Mortgage certificates;
- Investment certificates;
- Subscription warrants;
- Rights to shares;
- Deposit certificates.
Debt securities also include transferable property rights, such as dividend rights.
Debt securities are financial documents representing claims. They constitute the fundamental property right that the holder of such a document possesses in relation to the issuer of the security. It should be noted that in the case of these types of securities, the claim serves an independent function. Simply put, debt securities represent a specific debt converted into a security, which can take various forms. As mentioned above, they can take the form of checks, bills of exchange, or bonds.
Types of Debt Securities – Brief Characterization
Due to the diversity of debt securities present in the market, we will provide a brief characterization of several key securities that are commonly encountered in the financial and economic sectors:
- Bond – a specialized financial document issued in series. In this document, the issuer officially acknowledges their indebtedness to the bondholder and commits to fulfill a specific obligation on their behalf. Importantly, owning bonds does not grant the holder rights like co-ownership, dividends, or participation in general meetings. The issuance of bonds is one of the options companies have to raise capital.
- Bill of Exchange – a financial document structured according to bill of exchange laws. Its signing serves as the basis for incurring an obligation by the signatory, without securing any claim. In the legal circulation in Poland, we distinguish between own bills and transferable bills. A characteristic feature of a bill of exchange is its “unconditional obligation,” meaning that the bill itself is not tied to any other legal actions.
- Check – a financial document structured according to check laws. It contains an order from the issuer to a bank to pay a specified amount of money to the check holder or a designated person. The funds are sourced from the issuer’s account at the bank. The order for payment must be unconditional.
In Poland, the current legal act regulating various principles related to the issuance and trading of bonds is the “Bond Act” dated June 29, 1995. Meanwhile, provisions concerning enforcement procedures based on securities are governed by the Polish Civil Code.
Criteria for Classifying Debt Securities
|According to the Type of Right
|Bill of exchange, check, bond, mortgage certificate, investment certificate, public securities issued under public finance and central bank regulations (treasury bill, government bond, municipal securities, National Bank of Poland securities), banking securities, subscription warrants,
|Share, investment certificate
|Bill of lading, warehouse receipt
|According to the Manner of Designating the Entitled Person and the Method of Transfer of Securities
|Transferable by transfer
|Transferable by possession transfer
|Transferable by declaration of will
|According to the Possessed Privilege
|According to the Repayment Period Criterion
|Bonds, mortgage certificates
|According to the Group of Issuers
|According to the Type of Interest Rate
Enforcement based on Debt Securities
Enforcement based on debt securities is a significant aspect in the field of enforcement and economic law. It enables the pursuit of claims by seizing securities held by the debtor. In the face of constantly evolving economic trading forms involving securities, continuous professional analysis of the regulations governing this matter is required. As mentioned earlier, securities can include shares, bonds, and shares, among others.
Currently, the regulations governing the enforcement from securities in Poland are based on the legal provisions of the Civil Procedure Code. Enforcement from financial instruments held in securities accounts or other accounts is carried out through enforcement measures. Enforcement based on securities is a process in which the entitled creditor seeks the satisfaction of their claim by seizing the securities.
When proceeding with the seizure, the enforcement officer, through a copy of their decision:
- Informs the debtor about the prohibition to receive any performance and the prohibition to dispose of the performance, with certain exceptions, by seized financial instruments or values held in an account;
- Notifies the entity conducting brokerage activity where the debtor has an account concerning the nature of the enforced performance;
- Instructs the entity conducting brokerage activity where the debtor has an account not to execute any orders beyond specific exceptions, and not to disburse funds to the debtor from their account, and to either transfer the seized monetary sums to the amount of the enforced claim to the enforcement officer or deposit them into the deposit account of the Minister of Finance.
Conducting brokerage activity provides the possibility of exchanging letters with the enforcement officer through a special teleinformatics system, which manages the seizure of claims from a bank account. The enforcement officer can also choose the traditional way of document exchange. In such a case, if the entity conducting brokerage activity decides to use the mentioned system, they are obligated to use it for submitting all documents addressed to the enforcement officer.
The applicable legal provisions have established the priority for satisfying the creditor from monetary sums accumulated in the debtor’s account, and only when these sums are insufficient to cover the entirety of the enforced performance, then the process of selling financial instruments is initiated.
The enforcement procedure based on securities also provides for the possibility of selling previously seized financial instruments based on the security decision. In this situation, the entity conducting brokerage activity where the debtor has an account promptly calls upon the debtor to submit a sales order within three days to satisfy the creditor’s claim over a one-month period, indicating which of the deposited financial instruments are the subject of the sales order. Nevertheless, it must be noted that enforcement takes precedence. It must be unequivocally stated that in the event of a concurrent court or administrative enforcement, the principle of priority is applied, meaning that when the amounts in the account are insufficient to cover all enforced claims. In the case of a potential enforcement convergence, the enforcement officer is obliged, during the seizure directed to the entity conducting brokerage activity where the debtor has an account, to instruct them about their obligations in the event of enforcement procedure convergence.
Importantly, if the debtor, despite receiving the summons, fails to submit the necessary order for the sale of financial instruments or if the process of selling these instruments does not come to fruition, then the right to issue such a sales order to sell selected financial instruments is transferred to the creditor. The creditor exercises this right based on a notification containing detailed information about the financial instruments placed in the account. The account holder is obligated to forward this notification to the creditor through the enforcement officer within three days from the day on which the deadline for issuing the sales order has expired or from the day when the sale of financial instruments did not take place.
The provisions of the Polish Civil Procedure Code stipulate two cases in which the enforcement procedure is terminated, specifically in cases where:
- The creditor does not submit the sales order within two weeks to sell financial instruments;
- The sale on the creditor’s order does not occur within one year.
Experience shows that in enforcement procedures, there are often multiple parties involved. In situations where there are at least two creditors, if financial instruments are seized on their behalf and there is no unanimous agreement on the sale of financial instruments, a curator is appointed to act on behalf of all the creditors and issue the sales order. If a curator is appointed, the two-week term begins from the day of the curator’s appointment.
A curator is an entity appointed to represent the interests of third parties or a group of individuals involved in a specific legal and financial situation. The curator acts on behalf of these individuals or groups when their consent or action is necessary in the context of a given procedure or decision. In the context of the enforcement procedure, a curator can be appointed, for example, when financial instruments have been seized on behalf of multiple creditors as mentioned above, and there is no unanimous consent regarding actions from all creditors.
The dynamism of the financial market and the ever-changing economic conditions impact the efficiency of enforcement procedures based on the presented securities. Enforcement based on securities remains a significant tool for creditors who seek to satisfy their claims without being limited to financial means accumulated in the debtor’s account. However, due to the dynamic development of the financial market in contemporary times, it is essential to seek the assistance of professional legal entities to ensure the effectiveness of the enforcement process based on securities.