A comparison of the formal requirements for the transfer of registered shares and bearer shares and the differentiation of the need to issue bearer shares and the transfer of registered shares for the effective transfer of rights from those shares lead to a certain systemic inconsistency, contrary to the existence of similar reasons for simplifying legal trading, justified by the same economic considerations.
Under the rule Article 339 k.s.h. the transfer of the roll-over shall take place either by a written statement on the stock document itself or in a separate document and shall require the transfer of ownership. This provision lays down the formal requirements for the transfer of registered shares, listing cumulatively:
- 1) a written statement which may be made either on the stock document itself or in a separate document,
- 2) transfer of ownership of the share document.
Therefore, it should be concluded that without meeting the one there will be no transfer of shares from the statutoryly indicated premises. Any contractual transfer of shares, i.e. a regulation, should be recognised by the transfer, mainly as a result of sale, donation, exchange.
In accordance with the Supreme Court ruling of the day 27 April 2007 (I CSK 11/7) legislature in Article 339 KSH uses the term transfer of ownership rather than issuing the stock document, which means that the power over the stock document can be transferred in any legally permitted way.
In other words, the legislature expressly allows the transfer of ownership of shares not only in the manner specified in Article 348 k.c. i.e. by the issue of the item, but also allows the possibility of transferring ownership of shares as specified in Article 349-351 k.c., i.e. without the need to provide a public document.
Provision Article 339 KSH is not applicable to the transfer of bearer shares. Currently, according to the most common position, the transfer of bearer shares is not explicitly regulated in the Commercial Companies Code, and therefore the provisions of the Civil Code on the transfer of rights from bearer securities, i.e.
a rt, are appropriate. 921 12 with regard to Article 921 16 k.c. in addition, the transfer of bearer shares should be accompanied by provisions on transfer and transfer of property.
In particular, it should be assumed that for the effective transfer of bearer shares, it is necessary to transfer its ownership to the buyer by means of its issuance.
Therefore, alongside an important basis for the regulation of equity rights (Article 510(2) k.c.), and therefore contracts, it is necessary to transfer ownership of bearer shares by issuing shares according to Article 517(2) ed. Article 921 12 ed. Article 921 16 k.c. Due to the requirement to issue the document, it is not sufficient to transfer ownership of the bearer shares in any way (Article 349 k.c. or Article 351 k.c.), but it is necessary to give it to the buyer.
It should be stressed that the divestment of bearer shares is always a legal act, and that it is therefore necessary to give the shares to the buyer a physical presentation of the instrument of shares or at least a physical issue of a document enabling them to regulate or give actual authority over them (Article 348 k.c.). A different position would, in fact, change the nature of the transfer of bearer shares from a legal act to a consensus, which it opposes Article 921 12 k.c.
It should be pointed out that from the Supreme Court judgment of 3 June 2015 (V CSK 566/14, OSNC 2016/5/64), it follows that the issue of a document required by Article 921 12 ed. Article 921 16 k.c. and Article 339 in fine k.s.h. in respect of bearer shares may occur in any way provided for in Article 348-351 k.c.
It is worth noting that, in view of the content of the judgment in question, views based on the finding that the term ‘issue’ in relation to the transfer of bearer shares should be interpreted broadly, allowing the interpretation that any form of transfer of actual power over bearer shares documents would lead to a significant liberalisation of the rules on transfer of bearer shares.
However, it should be stressed that the judgment referred to above actually derogates from the position previously represented by the Supreme Court that the transfer of ownership rights of bearer shares requires the issue of a document of shares (judgment of the Supreme Court from 27 April 2007, I CSK 11/07 and the Supreme Court judgment of 5 March 2008, V CSK 467/07).
After the judgment of 3 June 2015 The Supreme Court not only did not give a ruling in which it would confirm this position, but on the grounds of its judgment of 5 February 2016 (II CSK 139/15), it follows that he again considered that the issue of bearer shares is taking place in a manner specified in Article 348 k.c.
by transferring actual power over the stock document.
Written by Maciej Tuszyński
Legal Manager 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.