Categories «Derivative» And «Derivative Valuable Paper» In Ukrainian Legislation: Law Nature And Modern State Of The Problem
This article deals with the correlation of definitions «derivative securities» and «derivatives». The actuality of this research is based on the absence of unified position of the parliament as for the law nature and correlation of definitions «derivative 128 securities» and «derivatives», which influences on the developing of derivative financial instruments market in Ukraine negatively. This problem is not decided in the civil law science, either.
The aim of this article is to analyze the development of Ukrainian legislative bases as for the correlation of definitions «derivative securities» and «derivatives».
The history of the development of the categories «derivative securities» and «derivatives» in the Ukrainian law is divided into nine stages. The conclusion that the category «derivatives» was adopted and is still used by tax legislation acts, but it is still often used in civil legislation acts is made. It is impossible to qualify the law nature of «derivatives» according to the legislation acts bases because of existing of dualism of legislative acts bases approaches in this problem. Some bases of legislative acts witness about a contract nature while other ones about valuable paper nature of a derivative. The parliament doesn’t call any kind of a derivative as a valuable paper nowadays. The category «derivative securities» was adopted and developed mainly in civil legislation acts bases. The parliament doesn’t call any kind of a derivative securities nowadays.
To sum up, it’s impossible to identify law nature of derivative financial instruments and there is no range of derivative securities in present legislation. Analyzing the law the conclusion about the necessity of solving the fundamental problem of the derivative financial instruments theory is made: if incorporation of risky and mutual hound obligations of derivative financial instruments into the plot of a valuable paper is allowed.