Restoration of Rights on a Lost Order Securities: An out-of-Court Procedure or Call-Out Proceedings?

Abstract

The article is devoted to the legal regulation of the procedural procedure for the restoration of rights on lost documentary securities with an emphasis on their type as order securities. The author analyzes civil and procedural legislation, the opinions of scientists and the judicial practice of courts of general jurisdiction and arbitration courts on the issue of the applicability of call-out proceedings to the restoration of rights on a lost order security. The author comes to the conclusion about the inconsistency of civil and procedural legislation in the issue of the procedure for restoring rights to a lost order security, which is clearly confirmed by judicial enforcement. The amendments introduced in 2013 to the Civil Code of the Russian Federation to this procedure have been interpreted ambiguously and inconsistently for ten years, there is no unity in understanding the procedure for restoring rights under such documents by the courts, which cannot but affect the effectiveness of justice related to the protection of the rights of persons who have lost an order security. In conclusion, it is concluded that the identified inconsistency in the legal regulation of the procedure for restoring rights on a lost order security needs to be eliminated, but before the relevant legislative changes, explanations are needed from the Supreme Court of the Russian Federation on the applicability of summoning proceedings and the ratio of the provisions of paragraph 2 of Article 148 of the Civil Code of the Russian Federation and Chapter 34 of the Civil Code of the Russian Federation. The methodological basis of the article consists of general scientific (analysis, synthesis, analogy, description, system) and private scientific methods (comparative legal, formal legal).