Topic 4. CONCEPT AND CONTENT OF BANKING OFFENSES

The concept and composition of the banking legal relationship

The significance of any legal relationship lies in the fact that legal entities and individuals, various organizations in the course of their practical activities compare and evaluate their actual behavior and the behavior of other participants in a particular respect with what the behavior should be in accordance with the requirements of the regulatory act.

A banking legal relationship is a relationship between the subjects of banking law, regulated by the norm of banking law, one of the parties of which is the Bank of Russia. It can also be said that a banking legal relationship is a legal relationship between subjects of banking law, the main content of which is the rights and obligations arising from the observance, execution, use and application of the procedure for conducting banking operations and transactions established by laws and regulations of the Bank of Russia.

For example, between the Bank of Russia and a credit institution there is a legal relationship for the latter to comply with the standards established for it. In fact, there may be some deviations from the financial activity model established for this legal relationship - the only question is the degree of discrepancy. But a legal relationship should be considered not an actual relationship that contains deviations, but a legal one, that is, such as it should be in this situation. Such an approach always makes it possible to compare the legal and the factual in relations between subjects, without mixing one with the other.

A banking relationship is the legal form of an actual banking relationship. Therefore, the concept of legal relationship includes only what is legal. There should not be any non-legal (actual) elements in the content of the legal relationship itself. Legal and actual social relations are interrelated, but not coinciding concepts.

A banking legal relationship is a legal relationship between entities, one of which is always the Bank of Russia. It is provided for by the norm of banking law, therefore its volitional content is built in accordance with the method of legal regulation of banking law - the method of an imperious order. This is a vertical relationship.

The legal relationship between a credit institution and the Bank of Russia arises from the moment of its registration and is terminated by the deletion of the corresponding entry in the State Registration Book of Credit Institutions.

In the interval between these reference points, numerous changes in the banking legal relationship can occur and, as a rule, occur, associated with obtaining various licenses, amending the constituent documents, coordinating the heads of a credit institution, its reorganization, and transformation. Such a legal relationship is a status one. In this banking legal relationship, the status of a credit institution is realized.

However, a credit institution has not only a status, legal status, which, as you know, change over time, but also functions.

The functions of a credit institution are the main directions of its banking activities. They are carried out through banking operations and transactions.

In the process of banking operations and transactions between a credit institution, depositors, creditors and all other persons who use banking services, civil law relations arise. Civil law relations regulate only that part of banking activity, which is an object of civil law. Other branches of law have their objects in banking.

One of the leading universities in Russia in the field of law, finance, banking, property valuation and management is the Moscow State University of Geodesy and Cartography (MIIGAiK), in particular the Faculty of Humanities (GUF) and the Faculty of Economics and Territory Management (FEUT).

The procedure for conducting banking operations and transactions is governed by the rules established by banking laws and the Bank of Russia. This procedure is an object of banking law. A credit institution is obliged to comply with the rules established for conducting banking operations and transactions. Compliance with the requirements established by these rules gives rise to operational banking legal relations between the credit institution and the Bank of Russia.

The operational banking legal relationship between the Bank of Russia and a credit institution is constructed vertically. But banking activity is one, and therefore civil and banking legal relations are closely interconnected. This means that each civil legal relationship between a credit institution and its client, including a depositor (horizontal legal relationship), corresponds to a banking legal relationship - between the Bank of Russia and a credit institution (vertical legal relationship).

Such is the logic of the method of legal regulation in banking law - the method of imperious order.

In the legal literature, according to the author (Shevchuk D.A.), the concept of a banking legal relationship is defined too broadly. The scope of the concept largely depends on how the structure of the legal relationship is understood. Some authors believe that the banking legal relationship is complex, that it is regulated by the norms of both public and private law.

The subject composition of a banking legal relationship includes only legal relations between credit institutions and the Bank of Russia, as well as between the founders of a credit institution and the Bank of Russia at the time of the creation, reorganization, transformation or liquidation of the bank, including procedures related to its sanitation.

In banking law, unlike civil law, only the method of imperious order is used. The norms of banking law are imperative. They do not provide for equality of arms. This largely determines the structure of the legal relationship, and hence its specificity, subject composition.

Any legal relationship, and banking in this respect are no exception, arise, change and terminate due to legal facts.

Legal facts are divided into events (circumstances independent of the will of the parties) and actions committed by the will of the parties.

In accordance with Art. 8 of the Civil Code of the Russian Federation, civil rights and obligations arise from the grounds provided for by law and other legal acts, as well as from the actions of citizens and legal entities, which, although not provided for by law or such acts, but by virtue of the general principles and meaning of civil law give rise to civil rights and obligations. In accordance with this, civil rights and obligations arise:

1) from contracts and other transactions provided for by law, as well as from contracts and other transactions, although not provided for by law, but not contrary to it;

2) from acts of state bodies and local self-government bodies, which are provided by law as the basis for the emergence of civil rights and obligations;

3) from a court decision that established civil rights and obligations;

4) as a result of the acquisition of property on grounds permitted by law;

5) as a result of creation of works of science, literature, art, inventions and other results of intellectual activity;

6) as a result of causing harm to another person;

7) due to unjust enrichment;

8) due to other actions of citizens and legal entities;

9) due to events with which the law or other legal act connects the onset of civil legal consequences.

All these grounds can also be applied in banking law.

All legal banking relations can be conditionally divided into two large groups:

▪ legal relations in which its competence is exercised in the system of separation of powers, that is, external legal relations in relation to the banking system as a whole. These are constitutional legal relations on the formation of its highest governing bodies, on interaction with the legislative and executive authorities in the state. In addition, in some cases, the Bank of Russia is the subject of certain international legal relations;

▪ legal relations within the banking system, in which the functions of the Bank of Russia provided for by law are carried out. This includes all legal relations in which credit organizations and the Bank of Russia are participants.

Relationships of any kind include:

▪ object, i.e. something about which legal relations are formed;

▪ subject, i.e. participant in legal relations;

▪ rights and obligations of subjects of legal relations.

Objects of banking legal relations

The object of the banking legal relationship is banking activity and the social relations arising in connection with it, the content of which is a banking operation or a banking transaction.

Banking operations and banking transactions are carried out by a credit institution for the purpose of providing banking services and making a profit, which, in turn, can be considered as part of banking activities. However, banking activity is not limited to this. It can be the object of other legal relations, such as, for example, civil law, financial or tax.

The delimitation of legal relations is important for determining the nature of the rights, duties and responsibilities of the participants in the relevant legal relations. Banking activity is a common object for the whole complex of legal relations that are somehow connected with it. But in this general object there are elements that become objects of specific branch legal relations.

The objects of banking legal relations and tax legal relations are closely related to each other, but by their nature they are different. And these differences are largely due to the subject of legal regulation in banking law and the specifics of the object: banking legal relations. In tax law, the administrative-legal method of regulation and sanctions of administrative law are used. In banking law, as already mentioned, completely different sanctions are applied.

At the same time, the general object - banking activity - is not clearly defined in the legislation. At least in Art. 5 of the Federal Law "On Banks and Banking Activity" only lists banking operations and banking transactions, but does not provide a definition of banking activity. In practice, this causes some difficulties, for example, in determining financial results in connection with determining the composition of costs included in the cost.

Subjects of banking legal relations

Banking activity is regulated primarily by civil and banking law. Some fundamental relations between the Bank of Russia and state authorities are regulated by the Constitution of the Russian Federation.

The Bank of Russia and credit organizations are the main subjects of banking legal relations. In some cases, the subjects of legal relations are participants in credit institutions (creation, reorganization, financial rehabilitation, termination and liquidation of a credit institution).

Clients of credit institutions, shareholders and depositors, as a rule, are subjects of civil law relations. Banking law regulates banking operations and transactions related to the specifics of banking activities insofar as it is related to the implementation of banking technologies.

A depositor or other person who uses banking services is not a subject of banking legal relations. Depositors are not granted the right to check how accounting is kept in the bank, including for its own deposit, whether banking operations are correctly executed and recorded, whether the bank complies with the relevant economic standards that apply specifically to depositors. The depositor does not know and does not have the right to require the bank to provide information on how the bank manages risks, what information products it uses, where it places the attracted funds.

The depositor's capabilities are limited only to what is directly related to the conclusion of a civil law agreement for a bank deposit and is indicated in Art. as a legal guarantee of this. 8 “Providing information on the activities of a credit organization” of the Federal Law of February 3, 1996 No. 17-FZ “On Amendments and Additions to the Law of the RSFSR “On Banks and Banking Activities in the RSFSR””, which states that “when carrying out banking operations a credit institution is obliged, at the request of an individual or legal entity, to provide a license to carry out banking operations, information on its financial statements (balance sheet and profit and loss account) and an audit report for the previous year, as well as monthly balance sheets for the current year. and legal entities by misleading by failure to provide information or by providing false or incomplete information, the credit institution is liable in accordance with this Federal Law and other federal laws." [13]

There is a regulation of the Bank of Russia in this regard, establishing a list of information that must be provided by a credit institution at the request of a depositor. Directive of the Central Bank of March 27, 1998 No. 192-U “On additional measures to protect the interests of bank depositors” provides that “credit organizations provide interested parties with information about their activities in the manner established by clauses 6.1 and 6.2 of this Directive, namely banks in localities of their work on accepting and issuing funds to individuals, provide the following information for a general overview of the bank as a whole:

a) copies of Bank of Russia licenses to carry out banking operations, as well as the address (at least one address in a populated area) at which an interested person can receive for review: a balance sheet for 2nd order accounts, drawn up in Form No. 101 of the Bank of Russia Instructions dated October 24, 1997 No. 7-U “On the procedure for drawing up and submitting reports by credit institutions to the Central Bank of the Russian Federation” (in thousands of rubles);

b) profit and loss statement in form No. 102; [14] c) aggregated balance sheet (form No. 113, column A and column 2 without indicating its name) (in thousand rubles); d) aggregated profit and loss statement in form No. 114 (column A and column 2 without indicating its name) (in thousand rubles); e) an audit report indicating the name of the audit firm and the license number of the Bank of Russia to carry out auditing activities in accordance with clauses 4.6 and 4.7 of Bank of Russia Regulation No. 23-P dated December 1997, 10 “On the procedure for drawing up and submitting to the Bank of Russia an audit report based on the results of audit of the activities of a credit institution for the year."

If a positive audit report is drawn up, the following entry is made in its final part: “The audited annual financial statements have been prepared in all material respects in accordance with the laws and regulations governing the procedure for maintaining accounting records and preparing financial statements in the Russian Federation, and accepted accounting principles "The reliability of the balance sheet and income statement has been confirmed." The auditing firm (auditor) certifies with its seal and signature the head of the company (authorized person) each sheet of the forms of the specified financial statements (balance sheet and profit and loss statement of the credit institution). The reporting prepared for publication is accompanied by a similar record, which is certified by the seal and signature of the head of the company (authorized person).

If a positive conclusion is drawn up with reservations, the following entry is made in its final part: “The audited annual financial statements, taking into account the changes made in all significant aspects, have been prepared in accordance with the laws and regulations governing the procedure for maintaining accounting records and preparing financial statements in the Russian Federation, and accepted accounting principles."

In accordance with clause 2.8 of the cited Directive, the record must also contain a statement of other significant violations identified during the inspection. The auditing firm (auditor) certifies with its seal and signature the head of the company (authorized person) each sheet of the forms of the specified financial statements (balance sheet and profit and loss statement of the credit institution). The reporting prepared for publication is accompanied by a similar record, which is certified by the seal and signature of the head of the company (authorized person). If there are significant violations on any issue included in the audit, which do not allow us to give either a positive or a positive opinion with reservations, the audit firm (auditor) prepares a negative opinion. The absence of the auditor's seal and signature indicates a lack of confirmation of the reliability of the reporting presented to the auditor. Upon completion of the audit conducted by the audit firm (auditor), the audit report as a whole is signed by the head of the company or his authorized person, certified by the seal of the audit firm and dated. [15]

Banks are required to provide the specified information for the following periods: balance sheet and aggregated balance sheet - for the month preceding the current month, Sberbank of the Russian Federation - within the last two months, but no later than the 10th day of the second month; profit and loss statement and aggregated profit and loss statement - for the year preceding the current one; audit report - for the year preceding the current one.

In addition, banks are entitled to submit profit and loss statements, as well as an audit report for periods within the current year. There are also deadlines for updating information. It is also provided that credit institutions have the right to disclose information about their activities through the Bank of Russia website on the Internet, as well as in other ways that ensure the availability of information to an unlimited circle of people.

Upon receipt of a letter from a credit institution containing consent to the disclosure of information, the Bank of Russia shall post it on the Bank of Russia website on the Internet.

If banks fail to comply with the requirements to provide information listed in clause 6.1 of the cited Directive, enforcement measures will be applied to them in accordance with Art. 75 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". Clause 8 of the Directive provides that clause 4 of the Directive is valid until the entry into force of the federal law on insurance of deposits of individuals, provided for in Art. 38 of the Federal Law “On Banks and Banking Activities”, unless otherwise established by regulations of the Bank of Russia, but no later than January 1, 2000. [16]

Now let's assume that some requirement of the Instruction is violated, and the depositor files a complaint with the Bank of Russia. What legal relations arise in this case between the Bank of Russia and the credit institution? Is the Bank of Russia obliged to resolve a dispute between a depositor and a credit institution?

According to paragraph 2 of Art. 11 of the Civil Code of the Russian Federation “protection of civil rights in an administrative manner is carried out only in cases provided for by law. A decision made in an administrative manner can be appealed to the court.” But the Bank of Russia is not vested with the right to protect civil rights administratively. In addition, as already mentioned, its regulations are not regulations of administrative law.

Consequently, the depositor's appeal to the Bank of Russia does not give rise to any administrative-legal relations.

At the same time, having received a complaint from a depositor, the Bank of Russia, in accordance with the current legislation, is not obliged to conduct checks on complaints from individuals and legal entities with subsequent provision of information to them and does not have the authority to conduct such checks.

If we assume that, upon a complaint received, the Bank of Russia will appoint an inspection in order to protect the rights of a particular depositor, then in this case it will have to take a written explanation on this fact from the credit institution. But if the Bank of Russia chooses a written explanation, then a legal case will arise and it will have to resolve the dispute between the credit institution and the depositor in a specific case. However, an attempt to resolve such a dispute could mean that the Bank of Russia violates the requirements of paragraph 2 of Art. 11 of the Civil Code of the Russian Federation, which states that the protection of civil rights in the administrative procedure is carried out only in cases provided for by law.

Does this mean that the Bank of Russia should disregard the depositor's complaint and recommend that he go to court?

It seems that the Bank of Russia is only obliged to give an answer to the depositor that such disputes are resolved in court. But since the Bank of Russia is responsible for banking supervision, then, therefore, it is obliged to check the complaint received for compliance by the credit institution with the requirements of the Instruction of the Bank of Russia ... The reason for the emergence of a supervisory legal relationship in such cases is the depositor’s complaint, but the legal relationship does not arise between the Russia and the depositor who applied to it, but between the Bank of Russia and the credit institution it supervises.

Subjective rights and duties

A subjective right is a right that belongs to the subject as a participant in the legal relationship.

Subjective right includes three powers:

a) the right to own actions;

b) the right to demand from the other party in a legal relationship the performance of its obligations;

c) the right to protect their violated subjective right.

In a banking legal relationship, each of the parties has its own rights and obligations.

The Bank of Russia has the right to demand from a credit institution that the credit institution conduct a specific banking operation in accordance with the requirements of banking laws and, in addition, in accordance with the banking rules established by the Bank of Russia. A credit institution is obliged to comply with all the requirements of the Bank of Russia - to conduct operations properly (make appropriate entries in accounting, correctly draw up accounting documents, violate economic standards, etc.).

On the other hand, a credit institution also has the right, having demanded from the Bank of Russia to provide the banking information it needs, to comply with the confidentiality provided for by law, to demand that the Bank of Russia impose on it only those requirements that are provided for by banking laws and banking rules. If the Bank of Russia violates its rights, the credit institution has the right to apply for protection to the arbitration court.

Author: Shevchuk D.A.

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