In writing, the time limit for action is varied. On the one hand, are part of the share capital, since the sum of the nominal value of the shares forms the share capital of the company. According to another approach, the share expresses the shareholder’s rights as a shareholder. The following will be described the terms and timing of the actions, as well as the main views of doctrine and jurisprudence in this regard.
Action in a document incorporating it in the appropriate form, according to Article 328(1) the code of commercial companies, it is also a security for rights other than claims. The specificity of shares treated as shareholder rights is that they exist independently of the issue of the share document.
Share rights with the content specified in the statutes of the company are created when the company is registered and when the share capital increase is registered respectively. According to Article 335(4) k.s.h. the documents of shares or temporary certificates issued before the registered share capital increase are invalid.
Therefore, it should be considered that the share is a declaratory security. Thus, the stock document does not lead to a corporate relationship and does not create rights, but merely reflects them.
Concepts of the creation of a security
When adopting the declaratory nature of the shares as a security, consideration should be given to how the shares themselves are created. In this matter, there are many concepts of the creation of securities in doctrine and jurisprudence.
According to the concept referred to as ‘creative theory’ for the creation of a security, it is sufficient to display in accordance with the requirements described in Article 328(1)(2) k.s.h. the share document by the company regardless of the reason for this. In that case, it does not matter to whom this document was issued.
According to another view, it is not only necessary to issue a document of shares signed by the company's management to create a security, but also to “put that document in circulation”. As part of this structure, it is stressed that it is not about the issue of a document to anyone, but only to the person entitled. This theory is called emission theory.
The current concept is the so-called ‘contractual theory’ which recognizes the contract that was made by issuing the document as the source of the debt in the securities.
According to this theory, apart from the issue of the Share Paper, there should be a causal agreement between the company and the shareholder as to the formation of corporate rights and their subsequent incorporation in the shares.
In order to form the security, it is necessary to issue the share document by the company and to issue it to the shareholder in accordance with his request on the basis of Article 328(5) k.s.h.
Therefore, the share as a security arises not when the company has drawn up a document, but when the shareholder has issued the share document under the contract. In order to form a security, it is necessary to establish a right of incorporation, which is incorporated in accordance with Article 328 k.s.h.
the stock document and the issue of that document to the authorised entity. Only the shareholder is entitled to receive the share document and his entitlement does not expire for the duration of the company and can be exercised at any time during that period.
This dominant view has been confirmed several times by decisions of the courts including the Supreme Court in its judgment of 23 January 2014, II CSK 172/13.
Causality principle and corporate rights related to action
It must be stated that the principle of causality of legal acts is the justification for the causal nature of the agreement creating corporate rights related to the action. This principle also applies to legal acts resulting in the formation of shares.
In order to establish the subject law and the security, it is necessary to associate the issuer of the document with the authorised causal act. Issue of a share document of the content and form specified in Article 328(1)(2) k.s.h.
to an unauthorised person will result in the fact that the stock document held by that person will not be a security and will not incorporate any company law.
Of course, it does not exempt companies from the obligation to issue stock documents in connection with their first the issue or issue related to the increase in share capital at the request of the authorised shareholder.
Issue of the share document
It is worth noting the difference between the issue of the share document and the transfer of its holding, stating that the issue of the share document, in the form of the transfer of the actual power over the share document, should occur when the company is to forward the document to the shareholder in a situation where the rights of the shares arose by its inclusion.
The Code of Commercial Companies clearly distinguishes the issue of a share document from the transfer of ownership. The issue of shares is only if the transfer of ownership takes place as defined in Article 348 Civil code. In such a case, the actual power must be delegated to the shareholder over the public document.
Shares should be issued when the company is to pass the document to the shareholder, for example. in a situation where rights from shares arise through its inclusion.
In conclusion, the above considerations must be concluded that the basis for the incorporation of the shareholder's right in shares as a security and at the same time the shareholder's acquisition of the ownership of the share document is an agreement between the shareholder and the company, which takes effect when the company has issued the shareholder's document stating that right. The share as a security arises at the time when the shareholder is issued the share document, in the execution of the corporate rights agreement between him and the company and their incorporation in the shares.
Written by Maciej Tuszyński
Associate in the Legal Department. Lawyer, member of the District Bar Council in Warsaw, graduate of the Faculty of Law and Administration of the University of Warsaw. He specializes in commercial and civil law law. He has professional experience, which includes litigation and comprehensive legal advice on the day-to-day service of economic operators, in particular commercial law companies. As part of his work at the law firm, his practice focuses on corporate, civil and economic matters.