1. Intangible property

Literally art. 302 CC provides for the norms of the bona fide acquisition regarding moveable things. Uncertificated registered securities are not tangible things and therefore in legal practice arise whether art. 302 CC could not be applied in respect of such kind of intangible property. Meanwhile, under the Securities Market Act 1996 the “good faith acquisition” should be applied regarding all emissive securities⁶, which are mostly uncertificated.

The action of the claimant for the restoration of records on the account by debiting from the account of a new illegal owner in fact is vindication in nature⁷ (the claim for restoration has a character of vindication⁸) and should be considered in accordance with art. 302 CC. In practice, fortunately, although without reference to the Securities Market Act 1996, courts apply the “good faith acquisition” in respect uncertificated securities arguing that art. 128 CC provides that “objects of civil rights are things, including money, securities”⁹.

2. “Without will”

According to the Draft a bona fide acquirer becomes owner of the securities even where the previous holder lost them without his will (theft, mistake, accident, etc). This idea is not set out in the Draft express verbis, but implicitly stated in it and flows from the theory of negotiability of the investment securities, which are commonly known worldwide. Supposedly, the Securities Market Act 1996 intended to support the same idea. But in Russia the theory of securities (“value papers”) by itself does not contain any special treatment for the bona fide acquisition (except bearer securities) and, naturally, in the absence of express verb exclusion becomes the subject of general bona fide acquisition rules and therefore “without will” concept effect in reality¹⁰. That is what happened with the rule of Securities Market Act (part 20 art. 2).

3. Notice of adverse claims

Under the Draft the “adverse claim” means a claim from a person who has an interest in the securities in question that is effective against third parties and that it is a violation of the rights of that person for another person to hold or dispose of those securities (sec. (1)(j) art. 1). In Russian law there is no term equal to the “adverse claim” and in its terminology contains (i) claim of owner and (ii) claims of third parties. A general bona fide acquisition rule is in the article, dedicated to an action of “vindication” (art. 302 CC), which is by definition a claim of the owner to “another’s unlawful possession”; therefore, a bona fide acquirer is contrasted only to the owner.

Generally, in case of bona fide acquisition the claims of third parties are recognised as terminated, because academia stays on position that bona fide acquisition is original, not derivative (i.e. rights of third parties do not transfer to the acquirer). However, when there is a notice of claims of third parties, such claims are considered as valid¹¹. The Securities Market Act 1996 tries to fix the approach of the “adverse claim” and contains the phrase “knew or could know about the rights of third parties” (part 20 art. 2). This an attempt will adequate, if “third parties” will be understood in sense of contrast with the person from whom the securities were acquired, and not to the former owner.

In the end, taking into account the particularises of Russian law on the bona fide acquisition there is clearly necessity to improve the Securities Market Act 1996 to made the ideas of this Law and the Draft to be provided expressly and clearly.