Ali je sodelovanje izvršitelja v izvršbi na nematerializirane vrednostne papirje sploh še smiselno

slovenian

2022

volume 48, issue 3/4

appraisal   court   dematerialised securities not listed on the stock exchange   enforcement on movable property   enforcement on real estate   executor   principle of economy   principle of proportionality

Lexpera d. o. o.
(Obvezni izvod spletne publikacije)

The executor is the dominus litis of enforcement on dematerialised securities not listed on the stock exchange. The executor is responsible for the valuation and sale of unlisted dematerialised securities and the division of the purchase price. However, experience in practice shows that executors do not have the appropriate economic expertise that would enable them to carry out certain procedural acts in the enforcement themselves, such as appraisal. Unlisted dematerialised securities, unlike listed ones, do not have a specified value. Moreover, the current regulations do not provide control mechanisms over the executor's actions in a specific enforcement, even though the executor has a primary role and broad powers in that enforcement. On the other hand, in the enforcement of unlisted dematerialised securities, the court has few tasks, and its role is mainly passive. The legal nature of unlisted dematerialised securities and the enforcement rules are not defined in practice. The generally accepted view, which was also supported by case law, is that unlisted dematerialised securities should be classified as movable property. Therefore, the enforcement rules on a movable property should apply mutatis mutandis to their enforcement. The critical question is whether unlisted dematerialised securities may be more similar in their characteristics to real estate, or even to a shareholder's share, than to movable property, and whether the provisions of enforcement on real estate should, therefore, apply to them in full. If only the enforcement provisions of enforcement on real estate were applied to unlisted dematerialised securities in the enforcement, it would mean that the executor would no longer participate in the enforcement procedure, which is desirable in view of the current situation in practice.

30.08.2022