Financial Collateral Arrangements

Original Language Title: o finančním zajištění

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=72726&nr=408~2F2010~20Sb.&ft=txt

408/2010 Sb.



LAW



of 9 June. December 2010



financial collateral arrangements



Change: 303/Sb.



Parliament has passed the following Act of the United States:



PART THE FIRST



BASIC PROVISIONS



§ 1



The subject of the edit



This law incorporates the relevant provisions of the European Union "^ 1") and modifies the

the procedure for provision of receivables on the basis of the Treaty, which

arranges for financial security, of the person authorized to negotiate financial

to ensure their rights and obligations and some other issues with the financial

by providing related.



§ 2



The definition of some terms



In this Act shall mean the



and the claim of the financial nature of the claim) from contracts of

the subject of the funds are investment vehicles, emission allowances

greenhouse gas emissions ^ 2) ^ 3) or commodities, as well as the rights and

the claims associated with these agreements,



(b) trade-sale) repurchase financial instruments agreed at the same time

buy and purchase feedback financial instruments at the same time the agreed retroactive

the sale,



(c)) financial instrument investment securities, securities, collective

investment or money market instrument,



(d) a claim for the payment of money) a claim for the payment of money

funds from an account in Czech or foreign currency or similar claim for

the payment of funds,



(e) the claim in respect of the claim of the credit), loan, lease or comparable

commitment to the return of the transferred or granted funds

in the Czech or foreign currency.



§ 3



The purpose of the financial collateral



Financial collateral is used under the terms of this Act to

ensure the financial nature of the event that occurs when a

late compliance, or other fact specified in

the Treaty, which is the financial collateral or in the framework of the agreed

the final settlement ^ 4), that the right of the recipient to obtain from

the financial collateral is not subject to the limitations otherwise arising out of the General

modifications to the lien, and the transfer of goods, rights and other proprietary

the values for the benefit of the creditors.



§ 4



The legal nature of financial collateral



(1) financial collateral has the nature of a lien to the financial

collateral or transfer financial collateral in favour of the

of the recipient.



(2) to transfer financial collateral occurs generally on the basis of the agreement

the financial collateral after completion of the transfer of the undertaking; in the case of

financial instruments, then also in the repurchasing trade. If the nature of the

financial collateral admits, and if it is in accordance with the agreement

the Contracting Parties, the transfer of ownership of the financial

collateral on its recipient.



PART TWO



FINANCIAL COLLATERAL



TITLE I OF THE



THE SUBJECT MATTER OF FINANCIAL COLLATERAL, THE CLAIM OF FINANCIAL CHARACTER AND PERSON

ENTITLED TO NEGOTIATE THE FINANCIAL COLLATERAL



§ 5



Financial collateral



(1) the subject of financial collateral is a financial collateral, which may

only be



and) financial instrument,



(b)) itself transferable right otherwise associated with a financial instrument,



(c)) the right deriving from registration of a financial instrument in the register and

to enable the creditor to dispose of, directly or indirectly to a financial instrument

at least in a similar manner as the legitimate holder,



(d)) money credited to an account in the Czech or foreign currency,



(e) a claim for the payment of money), or



(f)) the credit claim, if the creditor is a person referred to in section 7 (2). 1

(a). and), (b)), or t) or in § 7 para. 2 (a). (d)), or a foreign person

with similar activities as one of the persons referred to in § 7 para. 1 (b).

a) or (b)).



(2) financial collateral may also be a financial instrument or cash

funds credited to the account to which the collateral provider

the right of ownership arises only in the future, the right referred to in paragraph 1

(a). (b)), or (c)), that the collateral provider only arises

in the future, or a claim for payment of money or credit claim,

that is the result of financial collateral provider only in the future.



(3) financial collateral may be specified individually, or in a different way

so that it was possible to determine at any time during the term of the financial

ensure, for example, as a file of assets referred to in

paragraph 1, whose composition may change over time.



(4) the claim of a consumer credit or similar loan according to the

the foreign law may be financial collateral only

If its recipient and its provider of Bank, savings and loan

cooperative or a foreign person with similar activities as a bank or

savings and credit cooperative, or if the beneficiary or the

the provider of the person referred to in section 7 (2). 2 (a). d) to (f)).



(5) If a provider of financial collateral (hereinafter referred to as

"the provider") a natural person referred to in section 7 (2). 4, financial

collateral may be the only funds and financial instruments

that the recipient has the financial collateral arrangements (hereinafter referred to as "the recipient") in its

able to provide investment services, and cash and

financial instruments acquired for these values for the provider, and

cannot go about the funds that the recipient who is a bank

or a foreign person with similar activities as a Bank, billed as the

deposits.



§ 6



The claim of a financial nature



(1) financial security can be ensured only the claim of the financial

the character, including its accessory, and it is not decisive whether

on the claim for a service provider or any other person.



(2) financial security can be arranged for the claim the conditional or

the claim, which is to arise in the future.



(3) financial security can be arranged for claims of a certain type

emerging to the recipient at a certain time, or for the various claims arising

recipients of the same legal reason.



§ 7



Person authorized to negotiate the financial collateral



(1) the provider and the recipient may only be



and) the Bank,



(b)), savings and credit cooperative,



(c)) the person whose activities are crucial



1. provision of mortgage, consumer or other credit,



2. the financial lease (finance lease)



3. the provision of payment services



4. the issue of electronic money,



5. implementation of securitization,



6. the issue of guarantees or obligations, consisting in the fact that

will satisfy the creditor for a certain sum of money, if certain third

the person fails to comply with a commitment or other conditions will be met,



7. Exchange activity



8. provision of consulting activities related to capital structure,

industrial strategy and related questions, the transformation of companies

or transfer of the business of racing,



9. management of the assets of the customer, if its part of the investment

a tool based on free thoughts in the context of the contractual arrangement, or



10. safekeeping of securities, management or



(d)) the person whose critical activities include dealing on own

or a foreign account with



1. payment instruments,



2. money market instruments



3. foreign exchange values,



4. investment securities



5. options trading



6. futures, whose value is related to a course or the value of the securities

Securities and currency rates, interest rate or interest rate yield, financial

indices or financial indicators, expressed quantitatively, and from which

give a right to cash settlement and/or delivery of property right

the values to which their value, or



7. the financial differential in the treaties,



(e) a central counterparty, a settlement agent) or a clearing house under

the law governing payment transactions,



(f)) as a securities dealer,



g) regulated market,



(h) a central counterparty, a settlement agent) or a clearing house under

the law governing the capital market,



I) legal person authorized to keep a record of investment instruments,



j) insurance company,



reinsurance undertaking, to)



l) investment company,



m) investment fund with legal personality,



n) Pension Fund



about) a legal entity that trades on its own account with the investment

instruments in order to reduce risks (hedging) of the shops with the investment

tools that are not financial instruments, and this activity is among the

its critical activities,



p) a legal entity that trades on its own account in commodities ^ 3)

or investment instruments that are not financial instruments, and this

activities include its decisive activity



q) a legal person who is the creator of the market according to the law governing

the capital market,



r) rating agency,



with the person with similar) foreign activities as one of the persons referred to in

(a)) to r) and



t) a legal person with a special statute exempted from the scope of Directive

The European Parliament and of the Council to govern the activities of credit institutions ^ 6).



(2) the provider and the recipient can be further



and) State or a Member State of the Federation,



(b) the local government unit of the State),



(c)) public corporation or any other legal person established by law,

which ensures the management and repayment of the Government or the public debt or

carries out activities with such administration and repayment,




(d)), the Central Bank of the Member State of the European Union or other State

the formation of the European economic area,



(e)), the Central Bank of the State not covered by point (d)) or the European

the Central Bank and the



(f)), the World Bank, the International Monetary Fund, the European Investment Bank

or other international financial institutions.



(3) provided that the beneficiary or provider of any of the persons

referred to in paragraph 1 or 2 may be the provider or the recipient of

also



and) other legal person,



(b)) other foreign person than the person physical and



(c)), the individual entrepreneur, if having regard to all

the circumstances of the apparent financial security arranged in connection with the

its business activities.



(4) the service provider may also be another natural person, provided



and is the recipient of the Bank), which is authorised to provide investment services,

a securities dealer or a foreign person with similar activities

as a bank or a securities dealer and authorised to provide

investment services,



(b)), taking into account all the circumstances show that the financial

ensure agreed in connection with the loan or lease

as a provider to the customer, in order to facilitate trade with the investment

by the recipient as the lending or zapůjčitel,



(c)), it was expressly agreed that it is a financial collateral,



d) contract financial security, has in writing and



(e) prior to the conclusion of) the recipient informed about major providers

the characteristics of the law on financial collateral arrangements, and about how to

financial collateral legislation differs from General editing of lien

rights and the transfer of goods, rights or other assets for the benefit of

the lender.



TITLE II



THE NEGOTIATION AND ESTABLISHMENT OF FINANCIAL COLLATERAL



§ 8



The negotiation of the financial collateral



(1) the contract between the provider and the recipient, which is arranged

financial security, does not require a written or other special form; by

is without prejudice to § 7 (2). 4 (b). (d)).



(2) If a legal act, the characters of financial collateral under this

the law, it is a financial collateral, it was agreed that the

financial collateral; This is without prejudice to § 7 (2). 4 (b). (c)).



§ 9



The emergence of the financial collateral



(1) to the emergence of financial collateral is needed to make financial

collateral shall be surrendered to the recipient, credited to the specified account to the recipient or

provided in a different way, which allows the beneficiary or the person

acting on his behalf to hold it or otherwise legally or de facto,

control, or that the lien to him entered in the register of

investment instruments for the benefit of the recipient.



(2) the fact that there has been the emergence of financial collateral, it must be possible

demonstrate in writing, otherwise it is not about financial security. The written form

is maintained, if the emergence of financial collateral captured record, which

the emergence of financial collateral shows and allows to reproduce in an unchanged

form.



§ 10



List of credit claims



(1) in the case of credit claims, the condition is proof of the emergence of

financial security also is satisfied by passing a list of credit claims

(hereinafter referred to as "the list") in written form to the recipient. The list captures the credit

the claim, which belongs to the financial collateral.



(2) unless the contract provides otherwise, it is considered that the credit claim

registered on the list of recipients with the swap provider stepped

the condition that occurs when a delay with the performance of secured claims

financial nature or that there is any other fact specified in

the Treaty, which is the financial collateral, or other fact

agreed in the context of the final settlement ^ 4) with the fact that the legal effects of

referrals occur only for those credit claims that the recipient

the exercise of the right to the satisfaction of the selects from the list.



(3) as soon as the list is handed over to the recipient, not the provider with the credit

claim registered on the list.



(4) the registration of the credit claim to the list is not the recipient or the provider

obliged to notify the debtor, whose commitment to the credit claim

corresponds to.



TITLE III



DEALING WITH FINANCIAL COLLATERAL



§ 11



Basic provisions



To dispose of the pledged financial collateral, especially to convert it,

stop, take or allow its use by another, seize his

the fruits or benefits, the recipient can only, if the contract specifies. Loading

freeze frame of financial collateral cannot be arranged, if it is a

the credit claim; This is without prejudice to section 16.



§ 12



Lien when dealing with financial collateral



If the recipient disposes of the freeze frame of financial collateral, the security interest

the right to the financial collateral shall cease to exist.



section 13 of the



Replacement financial collateral pledged



(1) the recipient that a freeze frame of financial collateral, the fed, it

replaces no later than the time when the secured claim becomes

due and payable, and that if the financial collateral



and the same amount of funds) the funds in the same currency,



(b)) financial instruments the same quantity of fungible financial

tools and if the financial collateral the rights referred to in § 5 para. 1

(a). (c)), the same amount of fungible rights; a contract

financial security in these cases, however, can determine for

what conditions will be replaced by a different property value, and



(c)) shall not be transferable rights separately otherwise associated with a financial instrument

What has been agreed.

Financial collateral pledged, with whom the recipient charges can be replaced

only property the value of which may be financial collateral.



(2) if so, can the recipient that a freeze frame of the financial

collateral, the fed, instead of replacing it in accordance with paragraph 1, set off

his claim guaranteed financial security that is payable,

in the framework of its inclusion in the final settlement ^ 4), against the value of

the financial collateral.



(3) if the performance of the recipient and the provider of receivables

of the same kind, the set-off referred to in paragraph 2 is permissible, if before

setting off reciprocal claims to their awards, and the subsequent change in the

the contents of the corresponding commitments to new mutual commitments

match the monetary claim in the same currency and in the amount specified by the

This award; unless agreed otherwise, they shall be in a manner that

corresponds to the practice on the financial market.



(4) Dealing with financial collateral or its replacement

referred to in paragraph 1 does not affect the emergence and duration of financial collateral.



(5) if it is to be replaced by financial collateral pledged pursuant to paragraph 1

equity value, the lien of the recipient in the same range

to the equity value of the financial collateral has been replaced.



TITLE IV



REPLACEMENT FINANCIAL COLLATERAL PROVIDED, LIMITING THE SCOPE OF LIEN

RIGHTS TO IT, RETURN OF ITS PARTS AND THE ADDITION OF COLLATERAL



§ 14



(1) a contract may specify that the provider has the duration of the financial

ensuring the right to



and replace the provided financial collateral) for other financial collateral

comparable values,



(b)) to require the return portion of the financial collateral or reduce the scope of

the lien of the financial collateral, and in excess

the amount of the secured claim.



(2) if the recipient claims the lack of assurance, especially in

as a result of changes in the value of the financial collateral, the amount of the secured claim

or the borrower's credit score provider or secured debt, may

the recipient may claim its reasonable supplement, unless the agreement otherwise.



(3) the Exchange or return of part of the collateral, or reduce the scope of

the lien of the financial collateral referred to in paragraph 1, as well as

supplement the guarantee referred to in paragraph 2 do not affect the emergence and duration

financial collateral.



TITLE V OF THE



SPECIAL CONTRACTUAL ARRANGEMENTS



§ 15



The contractual arrangements for the purposes of ensuring other financial receivables

the nature of the



Specifies if the contract, the recipient is entitled to keep the provided

financial collateral and after fulfilment of the undertaking, which corresponds to the secured

the claim of a financial nature, for the purpose of securing other debts

financial nature. The content of such agreement may also be agreement

the parties that for a time after which the recipient is entitled to retain

provided financial collateral is not required under section 13 replaced

pledged financial collateral with which he treated.



section 16 of the



The contractual arrangements in the case of the performance of debt in installments



(1) belongs to the credit claim to financial collateral that was

stopped or referred to the recipient, and that is fulfilled in instalments, fulfils

the individual debtor debt payments including accessories for the duration of

financial security continue to be a provider.



(2) contract financial security, however, may in

such cases, specify that the debtor fulfil individual debt payments

including accessories after the agreed time; such arrangement is

the provider shall be obliged to submit a report to the debtor. As long as this agreement is not


provider notified to the debtor, or until the recipient of such an arrangement

the debtor fails to fulfil the individual debtor debt payments

the provider. Unless otherwise agreed, looking at debt payments

received by the recipient as to replenish collateral.



(3) on the expiry of the period for which the debtor was based on the arrangements referred to in

paragraph 2 complete each debt payments including accessories

the recipient, the recipient is obliged to submit a report to the debtor. Until this

the fact is the recipient notified to the debtor, or as long as the provider

This fact proves the debtor, the debtor fulfils the individual instalments

debt continues to be a recipient.



TITLE VI OF THE



EXERCISE OF THE RIGHT TO THE SATISFACTION OF THE FINANCIAL COLLATERAL



§ 17



The method of exercise of the right to the satisfaction of the financial collateral



(1) if there is a delay with the performance of the secured debt of the financial

character, or if there is another fact that is specified in the contract, which

financial security is stipulated, or agreed in the framework of the final

^ 4) settlement, the recipient may satisfy in a way which is

by the provider; in other cases, satisfy, with respect to legal

the nature of the financial collateral,



and from the proceeds of realisation) financial collateral; does not specify a way

liquidation of the contract, cashing in a way that matches the practices

the financial market, or



(b)) by offsetting the financial collateral against the value of their debt,

you want to the provider, even in the context of the inclusion of such values into the

the final settlement ^ 4).



(2) leaving the financial collateral pledged to the recipient can

satisfy only if it has been arranged in this way and if it was at the same time

agreed price for leaving or agreed method of determining, with the

How to determine the price must reflect the practices of the relevant financial

the market.



(3) if the recipient has chosen to satisfy the debts of the financial

the character of only some of the credit claims registered in the list and

the remaining credit claims is already achieved by any other claim

financial character, the list is deleted; This is without prejudice to section 15.



(4) If as a result of the exercise of the right to the satisfaction of the financial collateral

the recipient becomes a claim for payment of money or credit claim

the provider is obliged to report this fact to the debtor,

the commitment of such a claim is responsible. If the debtor indicates

the fact that the recipient's claim, the debtor is entitled to his/her

demand that he prove the acquisition of receivables.



section 18



The use of other law to exercise the right to the satisfaction of

financial collateral



Unless the Treaty provides otherwise, to execute the right to the satisfaction of the financial

collateral shall not apply, if the law provides for the



and the recipient in advance) announced the realisation of financial collateral

provider or any other person,



(b)) exercise the right of recovery from the financial collateral has enabled the Court

administrative authority or any other person,



(c)) financial collateral was liquidated at public auction or other

prescribed manner, or



(d)) before doing any of the right to the satisfaction of the financial collateral has expired

certain time limit.



PART THREE



THE PROVISIONS OF THE COMMON



§ 19



The effects of the acquisition of the claims by the beneficiary of the obligation of the borrower



If the recipient establishes the debtor whose commitment corresponds to the credit

claim or a claim for the payment of money of acquisition,

the debtor is relieved of the obligation only to the fulfilment of the recipient. It is sufficient if the

the recipient of the debtor proves that the credit claim was registered on

a list of.



section 20



Waiver of rights of set-off



The debtor whose commitment corresponds to the credit claim, when a lender

is the person referred to in section 7 (2). 1 (b). and), (b)), or t) or in § 7 para. 2

(a). (d)), or a foreign person with similar activities as one of the

the persons referred to in § 7 para. 1 (b). and) or (b)), it may declare that it

against this credit claim has waived the right to set-off any

a claim which has or will have against the lender and each subsequent

the creditor that loan debt gets a referral or from another

the rule of reason; This law, the debtor may give up even before the creation of

the claim for set-off.



section 21



The exclusion of the effects of certain acts of the Court or administrative authority



(1) a decision or other Act court or administrative authority, which is

affects the rights of third parties and has been made for the purpose of maintenance or restoration

the financial situation of the provider or the recipient, where appropriate, the prohibition or

restrictions perform certain transactions or funds transfer

the provider or recipient of the ^ 7), does not affect the exercise of rights and the fulfilment of the

the obligations arising from a financial collateral arrangement under the conditions

laid down in this law or comparable conditions of foreign

legislation, in particular on the right of the recipient to achieve the satisfaction of

financial collateral, where the financial collateral has been agreed and

was created before the adoption of the decision or performing another task. This is true

even in the case that the financial collateral has been agreed or was on the day of

adoption of a decision or perform other Act court or administrative

the authority, however, the financial collateral has been agreed or was until

This event occurred, unless the recipient knew of that fact

or should and could know.



(2) paragraph 1 shall be neuplatí for the effects of acts of the initiation

insolvency proceedings, enforcement, enforcement proceedings, access to

the introduction of a compulsory winding up or administration of the provider or the recipient;

the exclusion of these effects govern other laws.



section 22



Relationship to certain provisions of the regulations of the civil law



The legal effects of the transfer of financial collateral shall be governed by the provisions of this

the law and within the limits of financial collateral arrangements, regardless of the

the General arrangements of the lien and transfer of goods, rights or other

assets for the benefit of the creditors. The provisions of this Act shall be

also, regardless of the general legislation governs legal relations related

using the list, and with the right of waiver of set-off. Unaffected

other provisions of the Civil Code governing the terms of

the effectiveness of the assignment or stop the claim against the debtor and the

conservation of the objections against the claim that the debtor could apply at the time of

her assignment.



Article 23 of the



The protection of the legal status of the debtor of the credit claim to the case

included in the financial collateral



As a result of the inclusion of the credit claim to financial collateral shall not

deterioration of the legal status of the debtor, whose commitment to this

credit claim is responsible.



PART FOUR



THE PROVISIONS OF THE TRANSITIONAL AND EFFICACY



section 24



Transitional provision



This Act governs legal relationships arising before the date of the acquisition of its

efficiency; the emergence of these relations, as well as claims arising from the financial

ensure that last on the date of entry into force of this law, however,

assessed according to the existing legislation.



§ 25



The effectiveness of the



This Act shall take effect on 1 January 2000. January 2011.



Němcová in r.



Klaus r.



Nečas in r.



1) directive of the European Parliament and of the Council 2002/47/EC of 6 May 1999. June

2002 on financial collateral agreements, as amended by the directive of the European

Parliament and Council directive 2009/44/EC.



Article. 9 European Parliament and Council Directive 98/26/EC of 19 June 2000. may

1998 on settlement finality in payment systems and in systems

settlement of trades in securities, as amended by the directive of the European

Parliament and Council directive 2009/44/EC.



2) § 2 (2). 1 (b). (f))) and (l) of the Act No. 695/2004 Coll., on conditions for

trading with greenhouse gas emission allowance trading and amending

Some laws.



3) Article. 2 (2). 1 Commission Regulation (EC) no 1287/2006 of 10 March 2006. August

2006 implementing directive of the European Parliament and of the Council

2004/39/EC as regards record-keeping obligations for investment firms,

transaction reporting, market transparency, admission of financial instruments to

trading, and defined terms for the purposes of that directive, as amended by

to apply this regulation of 19 March 2003. November 2009.



4) section 193 of the Act No. 256/2004 Coll., on the capital market, in

amended by Act No. 409/2010 Sb.



6) Article. 2 of European Parliament and Council Directive 2006/48/EC of 14 July 1999.

June 2006 concerning the access to the activity of credit institutions and on its performance

(recast), amended by Commission directives 2007/18/EC and 2010/18/EU.



7 for example, section 28 paragraph 1). 1 (b). ) to c) of Act No. 87/1995 Coll., on

savings and credit cooperatives and some measures with the

related and the addition of the Czech National Council Act No. 586/1992 Coll., on the

income taxes, as amended by later regulations, as amended by Act No.

100/2000 Coll., Act No. 283/2004 Coll., Act No. 57/2006 Coll. and Act No.

120/2007 Coll., section 43 para. 1 of Act No. 42/1994 Coll., on pension

insurance with State contribution and on changes of some acts

related to its introduction, as amended by Act No. 169/1999 Coll., Act

No 36/2004 Coll. and Act No. 57/2006 Sb.