Topic 2. SOURCES OF BANKING LAW

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Denis Shevchuk

Law has an external form of its expression. The external form of manifestation of law is its sources.

The sources of banking law are federal laws and by-laws based on them.

The sources of law are a pyramid.

The main source of Russian law is a normative act.

In this sense, the Russian legal system has historically developed as a result of the influence of the continental, Romano-Germanic legal system, where, as is known, the main and practically the only source of law is a normative act. True, along with regulations in Russian banking law, as mentioned above, business customs operate, but only insofar as the Civil Code refers to them.

In the theory of law, normative acts include the following: the Constitution of the Russian Federation, federal constitutional laws, federal laws, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, normative acts of ministries and departments, laws and other normative acts of constituent entities of the Federation, normative acts of local authorities.

The main source of any branch of rights is the Constitution of the Russian Federation, adopted on December 12, 1993 by popular vote.

The Constitution of the Russian Federation establishes fundamental norms for banking law.

It establishes the independence of the Bank of Russia's issuing function, the procedure for appointing the Chairman of the Bank of Russia and the Board of Directors, as well as a number of other issues that constitute the essence of the monetary system in Russian society.

In Art. 4 of the Constitution of the Russian Federation states that the Constitution of the Russian Federation and federal laws have supremacy throughout the entire territory of the Russian Federation. Therefore, all other laws, including those adopted by the constituent entities of the Russian Federation, cannot contradict the Constitution of the Russian Federation and federal laws.

It should be borne in mind that, according to the Constitution of the Russian Federation, financial and credit activities are regulated only by federal laws. Subjects of the Russian Federation are not granted this right. This means that only federal government bodies can regulate the activities of credit institutions in the sense of establishing legal norms.

The norms of this act contain provisions directly related to banking activities, for example, in accordance with paragraph g of art. 71 the Russian Federation is responsible for establishing the legal framework for the single market; financial, currency, credit, customs regulation, money issue, fundamentals of pricing policy; federal economic services, including federal banks.

In accordance with Art. 75 The monetary unit in the Russian Federation is the ruble. Monetary emission is carried out exclusively by the Central Bank of the Russian Federation. The introduction and issue of other money in the Russian Federation is not permitted.

Protecting and ensuring the stability of the ruble, in accordance with the same article, is the main function of the Central Bank of the Russian Federation, which it carries out independently of other government bodies.

In the Russian Federation (Article 8 of the Constitution of the Russian Federation) the unity of the economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity are guaranteed.

In addition, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Economic activities aimed at monopolization and unfair competition are not allowed (Article 34 of the Constitution of the Russian Federation).

The next level of banking law sources is federal laws.

The procedure for their publication and entry into force is provided for by Federal Law No. 14-FZ of June 1994, 5 “On the procedure for publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly.” [5] In accordance with Art. 105 of the Constitution of the Russian Federation, federal laws are adopted by the State Duma. Federal laws adopted by the State Duma are submitted to the Federation Council for consideration within five days. A federal law is considered approved by the Federation Council if more than half of the total number of members of this chamber vote for it or if it has not been considered by the Federation Council within fourteen days.

However, it must be borne in mind that banking laws require that they be reviewed by the Federation Council. This follows from the provisions of Art. 106 of the Constitution of the Russian Federation, which provides a list of issues on which federal laws adopted by the State Duma are subject to mandatory consideration in the Federation Council. These include, in particular, federal laws adopted on issues of the federal budget, federal taxes and fees, financial, currency, credit, customs regulation, money issue; ratification and denunciation of international treaties of the Russian Federation. Since this article talks about financial, currency and credit regulation, it follows that we are talking about money circulation and the activities of credit institutions.

The Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" is a new edition of the Law of the RSFSR "On the Central Bank of the RSFSR (Bank of Russia)", taking into account the changes and additions made by the Federal Law "On Amendments and Additions to the Law of the RSFSR "On the Central Bank" RSFSR (Bank of Russia) "", which was adopted by the State Duma of the Federal Assembly of the Russian Federation on April 12, 1995, signed by the President of the Russian Federation on April 26, 1995 and came into force on the date of its official publication (published in Rossiyskaya Gazeta on May 4, 1995) , with the exception of certain articles, the terms and order of entry into force of which are established by Art. 5 of this Federal Law.

The Law provides a generalizing concept of banks and non-bank credit organizations - “credit organizations”.

From the date of entry into force of the new Federal Law, the Charter of the Central Bank of the RSFSR (Bank of Russia) lost force in accordance with Art. 4 of the Federal Law “On Amendments and Additions to the Law of the RSFSR “On the Central Bank of the RSFSR (Bank of Russia)”.

In accordance with Art. 1 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”, the status, tasks, functions, powers and principles of organization and activities of the Bank of Russia are determined by the Constitution of the Russian Federation, the said Federal Law and other federal laws. The location of the central bodies of the Bank of Russia is the city of Moscow.

The legal status of the Bank of Russia is enshrined in Art. 2 of the mentioned Federal Law. The Bank of Russia is a legal entity, has a seal with the image of the State Emblem of the Russian Federation and its foundation. The authorized capital and other property of the Bank of Russia are federal property. In accordance with the purposes and in the manner established by federal law, the Bank of Russia exercises powers to own, use and dispose of the property of the Bank of Russia. The seizure and encumbrance of the Bank of Russia's property without its consent is not permitted. The state is not liable for the obligations of the Bank of Russia, and the Bank of Russia is not responsible for the obligations of the state, except in cases where they have assumed such obligations or unless otherwise provided by federal laws. In Art. 4 of the Federal Law establishes the functions of the Bank of Russia. The Bank of Russia has the right to apply to the courts to invalidate legal acts of federal government bodies, government bodies of constituent entities of the Russian Federation and local government bodies (Article 3 of the Federal Law).

Bank of Russia according to Art. 6 of the Federal Law issues normative acts on issues within its competence by the Federal Law and other federal laws that cannot contradict federal laws.

The powers and functions of the management bodies of the Bank of Russia are determined by Chapter III of the Federal Law

The Federal Law provides for the procedure for the participation of the Bank of Russia as a legal entity in the capital of credit, international and other organizations (Articles 7, 8), as well as a list of operations that the Bank of Russia can carry out (Chapter XIII).

Chapter IX contains norms that regulate the foreign economic activities of the Bank of Russia.

Banking regulation and supervision of the activities of credit institutions are carried out by the Bank of Russia in the manner established by Chapter X of the Federal Law, in Art. 55 of which, in particular, stipulates that the main purpose of banking regulation and supervision is to maintain the stability of the banking system and protect the interests of depositors and creditors.

At the same time, it has been established that the Bank of Russia does not interfere in the operational activities of credit institutions, except in cases provided for by federal laws.

The Bank of Russia has the authority to establish mandatory rules for credit institutions for conducting banking operations, maintaining accounting records, drawing up and presenting accounting and statistical reporting, and economic standards. However, the Federal Law prohibits the Bank of Russia from requiring credit institutions to perform functions that are not typical for them (Article 57).

Supervision is carried out for the purpose of implementing banking regulation. The Bank of Russia is given the right to apply enforcement measures against credit institutions (ban on certain banking operations, collection of fines, revocation of a license to carry out banking operations and some other enforcement measures) (Article 75). Disputes arising in this case are subject to consideration in arbitration courts.

The Bank of Russia organizes non-cash payments (Chapter XII of the Federal Law).

In Art. 80 of the Federal Law provides that the Bank of Russia is the body coordinating, regulating and licensing the organization of settlement, including clearing, systems in the Russian Federation. The Bank of Russia is authorized to establish rules, forms, terms and standards for non-cash payments. In this case, the total period for non-cash payments should not exceed two business days within a constituent entity of the Russian Federation and five business days within the Russian Federation.

Foreign currency is used as a means of payment when making non-cash payments for goods and services only in cases established by federal laws.

The structure and principles of organization of the Bank of Russia are enshrined in the provisions of Chapter XIII of the Federal Law. Territorial branches of the Bank of Russia do not have the status of a legal entity, and their tasks and functions are determined by the Regulations on territorial branches of the Bank of Russia, approved by the Board of Directors (Article 84).

The legal status and functions of commercial banks and other credit organizations are provided for by Federal Law No. 3-FZ of February 1996, 17 “On Amendments and Additions to the Law of the RSFSR “On Banks and Banking Activities in the RSFSR”” with amendments and additions.

Federal Law No. 31-FZ of July 1998, 151 introduced new changes. [6] This Law defines the concept of a credit organization, establishes the structure of the banking system and defines a list of regulations that regulate banking activities, and also provides for a number of other issues.

Regulations of the Bank of Russia

Due to the need to implement the functions assigned to the Central Bank of the Russian Federation by the Federal Law of December 2, 1990 “On the Central Bank of the Russian Federation (Bank of Russia)” (as amended on April 26, 1995), the Bank of Russia is vested with the right to issue regulations.

In Art. 6 of the said Federal Law states:

“On issues within its competence by this Federal Law and other federal laws, the Bank of Russia issues regulations that are binding on federal government bodies, government bodies of constituent entities of the Russian Federation and local governments, all legal entities and individuals. Bank of Russia regulations may not contradict federal laws. Regulatory acts of the Bank of Russia come into force from the date of their official publication in the official publication of the Bank of Russia (Bulletin of the Bank of Russia), except for cases established by the Board of Directors. Regulatory acts of the Bank of Russia do not have retroactive effect. Regulatory acts Bank of Russia that directly affect the rights, freedoms or obligations of citizens must be registered with the Ministry of Justice of the Russian Federation in the manner established for registration of acts of federal ministries and departments. Regulatory acts of the Bank of Russia are sent in full, if necessary, to all registered credit institutions postal or another connection. Regulatory acts of the Bank of Russia can be appealed in accordance with the procedure established by law." [7]

These legal requirements are important for the strengthening and development of the banking system. The quality of the services that credit institutions provide to their clients largely depends on how Bank of Russia regulations are prepared and issued, and on what issues they regulate.

From the point of view of strengthening law and order in banking relations, it is necessary to achieve consistency between the laws and regulations of the Bank of Russia. As already mentioned, the rule of law is the principle of a rule of law state and an indispensable condition for the formation of civil society.

The document developed by the International Monetary Fund and adopted by the Interim Committee, which is called “Code of Good Practice for Transparency in Monetary and Financial Policies: Declaration of Principles,” states (clause 3.4) that “the public should have unhindered access to texts issued by the central bank of normative acts". [8]

Therefore, the current system of Bank of Russia regulations should be accessible to a wide range of users. The only basis for non-publication of Bank of Russia regulations is the need to ensure secrecy or confidentiality provided for by law. But in the latter case, the normative act may not be published for public consumption only if it is marked “For official use.”

The Regulations of the Central Bank of the Russian Federation (Bank of Russia) “On the procedure for the preparation and entry into force of regulations of the Bank of Russia” dated September 15, 1997 No. 519 [9] provide a number of requirements that are essential for understanding the meaning of legal norms and their correct application : the general concept of a normative act as an act that contains one or more rules of law, explains some differences between normative and non-normative acts, and also provides their classification (provisions, instructions, instructions), establishes the procedure for developing draft normative acts, their adoption, registration and publications.

The aforementioned Regulation of the Central Bank states that “the following normative acts are subject to submission for state registration to the Ministry of Justice of the Russian Federation: those containing one or more norms that directly affect civil, political, socio-economic, cultural and other rights, freedoms and legitimate interests of citizens, guarantees their implementation, enshrined in the Constitution of the Russian Federation and other federal laws; establishing, amending, supplementing or repealing the organizational and legal mechanism for the implementation of these rights, freedoms and legitimate interests, in force at the time of submission of the normative act for state registration."

From the above quote it is clear that the Regulation expands the range of those normative acts that must be registered with the Ministry of Justice of the Russian Federation, since it adds to the requirements of Art. 6 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” adds one more requirement: those regulatory acts of the Bank of Russia that qualify as “establishing, amending, supplementing or repealing the organizational and legal mechanism for the implementation of these rights, freedoms and legal interests." However, since we are talking about the rights of citizens, such acts must be published in the manner prescribed by law.

Registration of acts in the Ministry of Justice is carried out in the manner established for registration of acts of federal ministries and departments. Clause 7.2 of Bank of Russia Regulation No. 519 states, among other things, that “the following regulatory acts are subject to submission for state registration:

▪ containing one or more norms that directly affect civil, political, socio-economic, cultural and other rights, freedoms and legitimate interests of citizens, guarantees for their implementation, enshrined in the Constitution of the Russian Federation and other federal laws;

▪ establishing, changing, supplementing or canceling the organizational and legal mechanism for the implementation of these rights/freedoms and legitimate interests, in force at the time of submission of the normative act for state registration."

As noted by Ya.A. Geyvandov, “the bulk of Bank of Russia regulations containing legal norms are not monitored or verified for their compliance with federal legislation, they do not undergo legal examination by the Ministry of Justice of the Russian Federation, they are not fully covered by prosecutorial supervision, and in this regard, illegal regulations are not canceled or protested."

In many cases, Bank of Russia regulations have not been officially published, although they are not marked “For official use.” Moreover, among them there are those that affect the mechanisms for exercising the rights of depositors and creditors of credit institutions, for example, in terms of a liberal attitude on the part of banking supervisory authorities in cases of violations of regulations that, one way or another, affect the interests of depositors.

The essence of this problem is that any regulations affect public interests and are therefore controlled by the state. Moreover, the procedure for this control depends on the category of the normative act. It may also happen that unpublished normative acts that do not belong to any of the categories of normative acts generally fall out of the control of the state.

The decision of the Supreme Court of the Russian Federation dated November 17, 1998 No. GKPI 98-648 “On declaring illegal the decision of the Board of Directors of the Bank of Russia dated September 1, 1998 “On measures to protect public deposits in banks”” states that “this decision contains legal norms and needs in state registration due to the fact that, according to clause 10 of Decree of the President of the Russian Federation of May 23, 1996 No. 763 “On the procedure for publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies” regulatory legal acts of federal authorities, except for acts and their individual provisions containing information constituting a state secret, or information of a confidential nature that has not undergone state registration, as well as registered but not published in the prescribed manner, do not entail legal consequences as not having entered into force and cannot serve as the basis for regulating relevant legal relations, applying sanctions to citizens, officials and organizations for failure to comply with the instructions contained therein.” Further, the Supreme Court of the Russian Federation indicated that such normative legal acts are not subject to application due to the “Rules for the preparation of normative legal acts of federal executive bodies and their state registration” approved by Decree of the Government of the Russian Federation of August 13, 1997 No. 1009.

In accordance with Art. 6 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” (as amended on April 26, 1995), regulations of the Bank of Russia that directly affect the rights, freedoms or obligations of citizens must be registered with the Ministry of Justice of the Russian Federation in the manner established for registration of acts of federal ministries and departments.

Art. 16 of the Civil Code of the Russian Federation provides that “losses caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local government bodies or officials of these bodies, including the issuance of an act of a state body or other legal act that does not comply with the law or other legal act local government body are subject to compensation by the Russian Federation, the relevant subject of the Russian Federation or municipal entity."

Further, the same regulatory act of the Bank of Russia states (clause 1.2) that “in accordance with Article 25 of the Federal Law “On Banks and Banking Activities”, a credit institution is obliged to comply with the standards for required reserves deposited with the Bank of Russia.” [10] But Art. 25 of the Federal Law “On Banks and Banking Activities” was placed by the legislator in Chapter III, which is called “Ensuring the stability of the banking system, protecting the rights and interests of depositors and creditors of credit institutions.”

In the Federal Law of December 2, 1990 No. 394-1 “On the Central Bank of the Russian Federation (Bank of Russia)” this term is also not used, but is only stated in Art. 35 (clause 2) that required reserve ratios are one of the main tools and methods of monetary policy of the Bank of Russia. Further, in Art. 36 states that “The Bank of Russia regulates the total volume of loans it issues in accordance with the accepted guidelines of the unified state monetary policy.”

Thus, the Law stipulates that those loans issued by the Bank of Russia itself are regulated. Nothing is said here about the same loans issued by commercial banks.

In addition, monetary policy must be consistent with the goals of the Bank of Russia. As already mentioned, the legislation provides that one of these goals is to protect the interests of creditors and depositors. Here it turns out that mandatory reserves as a method and instrument of monetary policy do not correspond to the goals of this policy. It does not comply because its application does not take into account that the protection of depositors and creditors of credit institutions is a goal that is specified in the legislation, and the goal of solving the problem of multiplication and limiting loans is not specified.

Consequently, the economic method used by the Bank of Russia can, at best, be considered secondary to the need to use certain methods of protecting depositors. Another thing is that the methods in question - methods of protecting bank depositors and creditors as practical mechanisms - in the form in which they are provided for by law, are clearly insufficient.

Decree of the Government of the Russian Federation of August 13, 1997 No. 1009 “On approval of the Rules for the preparation of normative legal acts of federal executive bodies and their state registration”, in particular, indicates that “normative legal acts are issued by federal executive bodies in the form of resolutions, orders, orders, rules, instructions and regulations. The publication of normative legal acts in the form of letters and telegrams is not allowed."

In banking law, this issue is relevant because it affects the significant interests of creditors. In accordance with the order of the Ministry of Justice of the Russian Federation dated April 17, 1998 No. 42 “On approval of Explanations on the application of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration” [11] from the date of entry into force of the Decree of the Government of the Russian Federation of August 13, 1997 No. 1009 “On approval of the Rules for the preparation of normative legal acts of federal executive bodies and their state registration” normative legal acts of federal executive bodies are issued only in the form of resolutions, orders, instructions, rules, instructions and regulations. Acts issued in a different form (for example, instructions, etc.) should not be of a normative legal nature. The same document provides that a normative legal act can be issued jointly by several federal executive authorities, other bodies (organizations), or one of them in agreement with the others. In this case, a normative act is considered to be issued jointly if it is signed (approved) by the heads (persons acting as heads) of several federal executive authorities and other bodies (organizations).

If, according to the law of the Russian Federation, the approval of a normative legal act is mandatory, and also if it contains provisions, norms and instructions relating to other federal executive bodies, other bodies and organizations, the draft normative legal act is subject to approval, which is issued by visas of heads or deputy heads relevant federal executive authorities, other bodies and organizations. Both the Rules and the Explanations stipulate that the structure of a normative legal act must ensure the logical development of the topic of legal regulation.

The Explanations state that a reference in a normative legal act to a normative legal act of a federal executive body issued before May 15, 1992 and which has not undergone state registration with the Ministry of Justice of the Russian Federation is not allowed. This circumstance is very significant for banking law, given that the regulations of the Bank of Russia in a number of cases refer the law enforcer to the regulations of the State Bank of the USSR.

In order to streamline its rule-making activities, the Bank of Russia nevertheless adopted, albeit with a significant delay, Regulations of the Central Bank of the Russian Federation (Bank of Russia) dated September 15, 1997 No. 519 “On the procedure for the preparation and entry into force of regulatory acts of the Bank of Russia.” [12] If we consider that the Bank of Russia annually issues about a thousand different regulations, it becomes obvious that the delay in the adoption of this Regulation had a negative impact on banking law and on the practice of its application in general.

The aforementioned Regulations of the Central Bank of the Russian Federation (Bank of Russia) dated September 15, 1997 formulate a number of requirements for issued regulations.

It is provided that regulatory acts of the Bank of Russia are “acts of the Bank of Russia aimed at establishing, amending or repealing rules of law as permanent or temporary regulations, mandatory for a circle of persons determined by the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” and these Regulations , designed for repeated use on the territory of the Russian Federation." Regulatory acts of the Bank of Russia are adopted by it on issues within the competence of the Bank of Russia by the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” and other federal laws. They are mandatory for federal government bodies, government bodies of constituent entities of the Russian Federation and local governments, all legal entities and individuals. At the same time, Bank of Russia regulations cannot contradict federal laws. They do not have retroactive effect.

The Regulations state that if an act of the Bank of Russia contains one or more norms of law, then it refers to the regulations of the Bank of Russia and is subject to adoption in accordance with this Regulation and other regulations of the Bank of Russia regulating the procedure for preparing and enacting regulations of the Bank of Russia The following acts of the Bank of Russia are not regulatory acts of the Bank of Russia; administrative acts; acts of interpretation of regulatory acts of the Bank of Russia and (or) other regulatory legal acts of the Russian Federation in the sphere of competence of the Bank of Russia, if it is directly authorized to interpret these regulatory legal acts; acts containing exclusively technical formats and other technical requirements; other acts that do not meet the characteristics of a regulatory act of the Bank of Russia specified in clause 1.2 of the Regulations.

For the first time, the forms for issuing Bank of Russia regulations have been clearly established:

a) instructions from the Bank of Russia;

b) the position of the Bank of Russia;

c) instruction of the Bank of Russia.

Regulatory acts of the Bank of Russia are adopted in the form of instructions if, in their content, they establish separate rules on issues within the competence of the Bank of Russia, in the form of instructions on changes and additions to the current regulatory act of the Bank of Russia, if they contain provisions on changing certain provisions of the current regulatory act of the Bank of Russia and ( or) on supplementing the regulatory act of the Bank of Russia; in the form of instructions to cancel the current regulatory act of the Bank of Russia, if they cancel the current regulatory act of the Bank of Russia as a whole.

Regulatory acts of the Bank of Russia are adopted in the form of provisions if their main content is the establishment of systemically interconnected rules on issues within the competence of the Bank of Russia.

Regulatory acts of the Bank of Russia are adopted in the form of instructions if their main content is to determine the procedure for applying the provisions of federal laws and other regulatory legal acts on issues within the competence of the Bank of Russia (including instructions and regulations of the Bank of Russia).

Author: Shevchuk D.A.

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