REVIEW OF JUDICIAL PRACTICE IN CASES OF RECOGNIZING SHARES AS OWNERLESS
Authors: МАКАРОВА Ольга Александровна 
Published: February 2023

The article is based on the analysis of judicial and arbitration practice in cases of recognizing the issuer's shares as ownerless and recognizing the issuer's ownership of these shares. Since the legal entity that was the issuer's shareholder has been liquidated, the shares listed in the register of shareholders for such a liquidated legal entity, in the opinion of the issuer, are abandoned (Clause 2 of Article 226 of the Civil Code of the Russian Federation). When applying to the court with a claim to recognize the shares as ownerless, the claimant alleges that the participants (shareholders) and creditors of the liquidated legal entity, their legal successors, are unknown to him; any persons do not show their rights and any interest in relation to the shares, which clearly indicates a lost interest in the shares; disputed shares are registered with a person who does not have legal capacity. In view of the claimant - issuer, in the absence of the owner of the shares and the issuer's authority to exclude from the register an inactive legal entity, the entry on the liquidated legal entity in the register of shareholders is a formality that creates legal uncertainty about the fate of the shares, and cannot indicate that the shares have an owner; the very fact that during the liquidation of a legal entity the shares were not included in the liquidation balance or bankruptcy estate and were distributed within the established time limits among the interested parties indicates a waiver of ownership of such shares. The current situation impedes the normal financial and economic activities of the issuer, since its shares have actually been withdrawn from civil circulation. Therefore, the application to recognize shares as ownerless is the only available way to protect the rights and legitimate interests of both the issuer and its shareholders. The generalization of judicial and arbitration practice shows that arbitration courts have developed an unequivocal approach to such cases: following the Supreme Court of the Russian Federation, arbitration courts indicate that shares do not have the signs of ownerless things upon liquidation of the shareholder – a legal entity and the issuer of shares does not have the right of the owner of these shares.  «A liquidated legal entity that was previously a shareholder has legal successors in the person of its participants (shareholders) who have the right to a liquidation quota (clause 8 of Article 63 of the Civil Code of the Russian Federation, Clause 1 of Article 148 of the Federal Law of October 26, 2002 No. 127-FZ «On insolvency (bankruptcy)» and on the distribution of property discovered after its liquidation (Clause 5.2 of Article 64 of the Civil Code of the Russian Federation), or in the event of liquidation of a legal entity as a result of the completion of the tender proceedings, the unsatisfied creditors of the legal entity have the right to distribute the discovered property (Clause 5.2 of Article 64 of the Civil Code of the Russian Federation, Clause 11 of Article 142 of Law No. 127-FZ)».  This formally correct approach of judicial practice does not seem to safeguard the interests of the issuer and does not address the fate of the shares that are listed in the registry as belonging to the liquidated entity – the shareholder. Purpose: to analyze the current legislation on liquidation of legal entities from the point of view of securing the interests of the issuer, the shares of which are owned by the liquidated legal entity, and answer the questions: whether the issuer is obliged to identify participants in the liquidated legal entity – the shareholder of the issuer, whether the liquidated legal entity itself is obliged to notify the issuer about its participants, what to do in the situation when the participants of the liquidated legal entity, and its creditors do not apply for a long time for the distribution of the property remaining after the liquidation of the legal entity. The research method is a formal legal approach, as well as a method of literal interpretation of the provisions of the current legislation. Results: the regime of shares owned by a liquidated legal entity – a shareholder is not defined by law. The Civil Code of the Russian Federation and special laws on commercial corporations do not provide for the possibility of recognizing such shares as ownerless in order to transfer them to the issuer. At the same time, such an option cannot be ruled out by applying the analogy of the law under Article 6 of the Civil Code of the Russian Federation. The established judicial practice refuses to recognize the shares of a liquidated legal entity as ownerless, thereby preventing the issuer from disposing of these shares and maintaining uncertainty in their regime. The way out is to include in the law provisions obliging the legal entity that has decided to liquidate itself to notify the issuer and the registrar (the holder of the registry) thereof.