Debt securities, securities in the new code of civil law ? the need of judicial disambiguation

• Author: Eugenia Florescu
• Position: Associate professor
• Pages: 167-183

DEBT SECURITIES, SECURITIES IN THE NEW CODE OF CIVIL LAW – THE NEED

OF JUDICIAL DISAMBIGUATION

Associate professor Eugenia FLORESCU

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Abstract

A large part of the wealth is invested in securities, which circulate through documents or specific scriptural

records that ar e loca ted in the memory of the computer. These magnetic or paper -made „supports”, received

different names, in law and in doctrine: debt secur ities, securities, negotiable instr uments or commercial secur ities,

equity securities, bearer bonds, financial instruments, transfera ble securities, stocks, bonds, bill, promissory note,

check, et al. These expressions used by the New Code of Civil Law were assumed tale quale from the specialized

language of commercial law, without any concern for explaining the foundation a nd judicial meaning of these legal

institutions, and eliminate the a mbiguity in this matter. Under such conditions, the ana lysis is to identify the criter ia

under which the judicial genre will separa te from the judicial species in relation to the law and jur isprudence of the

European Union and/or to the regulations specially adopted at na tional level, over time.

Key words: debt securities, securities repr esentative of goods, tra nsferable securities, financial market, money

market, stock exchange market of transferable securities.

JEL Classification: K22

The ambiguities created by the tendency of the Romanian legislator, for a judicial

language alien to the European tradition and the hesitation to direct the applicable rules in this

specialized field of civil law, led to an elliptical and inadequate regulation, also assumed by the

New Code of Civil Law, which refers with ease to debt securities, as if they were known by

everybody.

As it is, an analysis referring to the nature and judicial consistency of some legal

instruments created with the judicial name of debt securities, which underlines forms of payment

and/or investments, is necessary.

Debt securities and public debt securities, will be examined, starting with the trade effects

(bill, promissory note, check) and continuing with securities representative of goods, (waybill,

bill of landing, warrant etc.) and with transferable securities (shares and bonds of the companies).

For each of these securities, the nature of the represented right is different, and their

applicable judicial state is different.

In this respect, the commercial papers, the securities representative of goods and the

transferable securities are the three categories of “species” of debt securities subject to special

legal rules.

All the debt securities have as common element the economic function, which allows the

law to move with maximum simplicity and safety, by document transfer or by account operation.

The legislator anchored general principles to the economic function, which create the unity of the

debt securities, configuring a judicial institution specific to the commercial law, currently to the

specialized civil law.

The positive law recognizes by default, a double judicial nature of the debt securities,

namely the one of transferable securities and of negotia ble instruments, by which the private

capitals flow from one investor to another.

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Eugenia Florescu, Lucian Blaga University of Sibiu, Faculty of Law, eugenia.florescu@gmail.com.

Perspectives of Business Law Journal Volume 1, Issue 1, November 2012 168

The commercial activity involves the supply and demand of goods, services, money, and

even of the instruments which represent these goods, materialized in metal, paper or in electronic

recordings, by the progress and the discoveries of humanity.

The transactions that have as object the instruments that incorporate values, have the

effect of releasing real capitals, which are transmitted from one owner to another.

These kind of operations created the financial market or the capital market, in which the

holders of the saved money, change or place the money for some medium or long-term claims.

Purchase of commercial papers (bill, promissory note) or of some transferable securities (shares,

bonds) represents a financial investment. The acquirers of these goods also hold a credit which

they can mobilize or divest, obtaining the necessary cash quickly.

These investment and divestment mechanisms underline the independence of the

transactions closed on specific markets and the connection among the money market, the credit

market and the capital market. There is a close connection between the money market and the

capital market, because the financial resources invested in transferable securities or in

commercial papers, by means of stock exchange mechanisms or by discount and rediscount

mechanisms, specific to the money market, are transformed in real capital and by divestment,

they are transformed in money capital. In other words, on the capital market, the investment

receives maximum liquidity regarding the parties affected by the transactions.

However, the operations that have as object debt securities and especially, transferable

securities, facilitate the flow of private capitals beyond the borders of a state, in this way the

capital market gains a transnational area. In these circumstances, one cannot ignore the European

Union treaties referring to the capital market, the capital flow and also to the rights and

obligations of natural persons and/or corporate bodies involved in transferable securities

operations; to the activity of these individuals; to the operating conditions of the credit and

insurance financial institutions and to the protection of the resident and non-resident of

community states investors.

However, related to the internal situation, the multiple legislative acts including the

analytical regulations of C.N.V.M, did not have the desired effect, the legal status of the debt

securities remained little known, including the interested individuals (companies, shareholders,

lawyers and so on.).

This state, created by the instability of the law, by the lack of cohesion between the

provisions regarding the same matter included in different legislative instruments and the lack of

an unitary legal concept dedicated to the debt securities, it reflected over the capital market and

over the population reluctant to this form of investment.

The New Code of Civil Law adopted in the year 2011 included the provisions of

commercial law specialized in the matter of commercial papers, transferable securities and

securities representative of goods, emphasizing the vagueness of the rules in this matter and

relaunching the need for some explanations of the matter.

As it is, an explanatory analysis is urged, in order to eliminate the confusions between the

types of debt securities as a judicial genre and the delimitation of each legal type and sub-type,

especially since, to date, specialized judicial literature has not shown concern in studying the debt

securities, their examination being limited only to some instruments; an increased attention was

paid only to commercial papers (bill, promissory note), although the other types of debt securities

are unquestionably important, as we will show in what follows.

1. The concept of “debt security” and the terminology used in law for the assigning the

debt securities