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Banking law. Subjects of banking law in the Russian Federation (lecture notes)

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Topic 5. SUBJECTS OF BANKING LAW IN THE RUSSIAN FEDERATION

General provisions on subjects of banking law

Subjects of banking law are persons who are provided for by banking law as possible participants in banking legal relations. The subjects of banking legal relations, as a rule, are the Bank of Russia and a credit institution. At the stages of registration and licensing, reorganization and liquidation of a credit institution, the Bank of Russia and the founders (members) of the credit institution and its creditors may act as subjects of banking law.

A credit institution is a party that is responsible not only to the client, but also to the Bank of Russia.

A credit institution, as a rule, is a subject of both civil law and banking relations. In the process of banking operations, both horizontal (civil law) and vertical (banking) legal relations arise simultaneously.

A horizontal legal relationship has an independent meaning, but at the same time it is a legal fact with which the law and regulations associate the need for a vertical legal relationship.

So, for example, the conclusion of a bank deposit agreement gives rise to a legal relationship between a commercial bank and a depositor. This is a horizontal (civil law) relationship. But at the same time, a vertical (banking) relationship automatically arises between the Bank of Russia and a commercial bank. The essence of this legal relationship is that a commercial bank is obliged to correctly (in accordance with the requirements of banking laws and regulations of the Bank of Russia) carry out an operation to attract a deposit, for example, make the necessary entries in accounting. In the same legal relationship, the Bank of Russia acquires the right to require a commercial bank to comply with these requirements.

For example, a civil legal relationship arises between a borrower receiving a loan and a credit institution with mutual rights and obligations towards each other. But unlike a credit institution, the borrower is not a subject of banking law. A borrower who has received a loan from a commercial bank does not bear any duties or liability to the Bank of Russia, and cannot and should not be subject to any sanctions from the Bank of Russia. The subject of banking law in this case is only a commercial bank, since the very fact of issuing a loan to a client gives rise to a legal relationship between the commercial bank and the Bank of Russia. The essence of this legal relationship in our example is that the credit institution must report to the Bank of Russia that it has created a reserve in accordance with the requirements of clause 2.7 of the Central Bank Instruction No. 30a dated June 1997, 62 “On the procedure for the formation and use of reserves for possible loan losses,” [17] and the Bank of Russia has the right to require such a report. Accordingly, all requirements for the classification of loans and the creation of an adequate reserve apply only to the credit institution, since it is it (and not the client) that must compensate for the risk of possible non-repayment of the loan issued to the borrower.

Credit organization as a legal entity

Prior to the introduction of amendments to the Civil Code of the Russian Federation (June 1999), there was no clear solution in the legislation as to whether the founders (participants) of a credit institution are subjects of banking law. It was not clear in which cases the same persons are subjects of civil law, and in which cases - subjects of banking legal relations. In this regard, it was necessary to determine, firstly, to what extent the laws regulating banking activity affect the rights and interests of the founders (participants) of a credit institution, and, secondly, whether the Bank of Russia has the right to extend the effect of its regulations to the founders (participants) credit organization.

This issue has not been considered in theory. Therefore, the uncertainty in legislation was aggravated by the uncertainty of the theoretical constructions of the concept of banking law and banking legal relations. Meanwhile, the need to answer this question was dictated by practice and its contradictions in cases where there was a need to rehabilitate credit institutions in connection with the procedures for revoking banking licenses. After all, the power of the Bank of Russia did not extend to the founders (participants) of credit organizations. And even with the adoption of the Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions” in 1998, the situation remained controversial, since this Law still contradicted the Civil Code of the Russian Federation in terms of the powers of the Bank of Russia in relation to the founders (participants) of banks.

In June 1999, paragraph 3 of Art. 87 of the Civil Code of the Russian Federation was supplemented by the second paragraph with the following content: “Features of the legal status of credit organizations created in the form of limited liability companies, the rights and obligations of their participants are also determined by the laws regulating the activities of credit organizations.” Clause 5, Art. 90 of the Civil Code of the Russian Federation - paragraph two with the following content: “The rights and obligations of creditors of credit institutions created in the form of limited liability companies are also determined by the laws regulating the activities of credit institutions.” Clause 3 art. 96 - paragraph three with the following content: “Features of the legal status of credit organizations created in the form of joint-stock companies, the rights and obligations of their shareholders are also determined by the laws regulating the activities of credit organizations.” [18] By the same Law, paragraph 1 of Art. 101 has been supplemented with paragraph three as follows: “The rights and obligations of creditors of credit institutions created in the form of joint-stock companies are also determined by the laws regulating the activities of credit institutions.” [19] Thus, some clarity has been introduced into the legal status of the Bank of Russia, on the one hand, and the founders (as well as participants, shareholders) of the credit organization, on the other. Now, with the adoption of these amendments to the Civil Code, the relationship between the Bank of Russia and the founders (participants) of credit institutions is regulated by banking law, and this does not contradict civil law.

In turn, this means that in cases provided for by laws regulating the activities of credit institutions, the power of the Bank of Russia extends not only to credit institutions, but also to their founders.

The Bank of Russia, as a subject of banking law, is not interested in replacing banking law with, say, civil law and, conversely, in blurring the line between them.

If such a substitution of concepts nevertheless occurs, if the boundary between banking and civil law is lost, then this creates unreasonable responsibility of the Bank of Russia not only as a subject of banking law, but also as a subject of civil law.

For example, the limits of banking supervision are clearly outlined in Art. 55 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”, and therefore the Bank of Russia does not interfere in the operational activities of a credit organization. But if the Bank of Russia had the right and obligation (competence) to intervene in the operational activities of a credit organization, control how it complies with civil law and its contractual obligations, and give it instructions in this regard, then it could be jointly and severally liable in the event of a violation credit organization of its contractual relations.

The Bank of Russia should supervise how a credit institution complies with banking laws, financial regulations and the requirements of Bank of Russia regulations. At the same time, the Bank of Russia also studies the extent to which a credit institution complies with civil law norms, but only to the extent that this is related to checking the credit institution’s compliance with banking rules, since civil law relations are most often those legal facts that, as already it has been said, give rise to banking legal relations.

Therefore, in order for the Bank of Russia, in the process of banking supervision, to be able, say, to check the compliance of a credit institution with economic standards, it must, among other things, study, for starters, loan agreements and the conditions that they provide. But this is not done in order to understand the relationship between the credit institution and borrowers, in their possible claims against each other (such a dispute is resolved in court), but in order to check the existence of legal facts (loan amount, terms, interest, security , the presence of delay, etc.) and determine the degree of risk for a particular loan, check the correctness of accrual of income and expenses taking into account this loan, check the correctness of bank accounting and other facts that are provided for by banking law and, therefore, may become the subject of supervision and inspection from the Bank of Russia.

In the legal aspect, these contractual conditions, as facts, simultaneously give rise to rights and obligations in specific banking legal relations between the Bank of Russia and a credit institution. For example, as a result of such an audit, a credit institution may be determined by the Bank of Russia as financially unstable or as having submitted false reports. She could be fined, or worse, have her license revoked.

All this is banking law, and it must be clearly distinguished from civil law. This is necessary in the interests of protecting the rights of all participants in banking legal relations, strengthening law and order.

Guarantees for the protection of depositors and other customers of the bank

As already mentioned, banking law is basically imperative, therefore, clients of credit organizations, in particular depositors, are not subjects of banking law, but subjects of monetary relations, and only to the extent that is regulated by civil law.

If banking law extended to clients and depositors, then such regulation would come into conflict with civil law, which provides for freedom of contract. Therefore, if banking law grants certain rights to a particular depositor in relation to the Bank of Russia, then at the same time it must also create obligations in relation to him in accordance with the principle of unity of rights and obligations in legal relations. Then the Bank of Russia will gain power over the depositor, which is contrary to the principle of freedom of contract in civil law.

Such a contradiction could not exist if the Bank of Russia were only a regulator and arbiter, would not have its own interest in civil law and would not be responsible for the entrepreneurial activities of the commercial banks it created, in whose capital it participates. These are the banks that will be discussed below and in the authorized capital of which the Bank of Russia owns the majority of shares - for example, in Sberbank.

It turns out that the Bank of Russia is engaged in commercial activities both as a regulator and as a controller, but not directly, but indirectly, through a limited circle of banks it created. Naturally, such a situation should be considered unnatural from the point of view of the law.

About 80 percent of all deposits of the Russian population are concentrated in Sberbank. True, there was a period when in 1996 some commercial banks, for example JSCB Inkombank, began to catch up with Sberbank in terms of the growth rate of depositors, but this period was short-lived and quickly ended. Potentially, this is a reserve for the redistribution function in the monetary and financial systems in conditions of instability and ineffective management of social processes. This may be why Russian banking legislation does not provide for public law banking relations between the depositor and the Bank of Russia. But this reduces the quality level of banking law. In passing, we note that the situation indirectly confirms that law cannot be higher than the economy and the cultural development of society conditioned by it.

Banking law should create conditions for competition and protection of the interests of owners who have invested their money in a bank and entrusted it to it; this applies in particular to bank customers and small depositors.

This is the general trend in many countries of the Western world. For example, in France, the Banking Law of 1984 places this responsibility on the Bank of France, while the specific control functions under the Law of 4 August 1993 are carried out by the Banking Commission, to which the Bank of France provides its funds for the performance of these functions.

In Russia, this obligation is not directly formulated in banking legislation. In Part 3 of Art. 55 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” only states that “the main goal of banking regulation and supervision is to maintain the stability of the banking system and protect the interests of depositors and creditors.” As will be shown later (in Chapter IV), even these vague formulations are not supported by anything concrete and conflict with the legal status of the Bank of Russia, designed in accordance with the interests of a certain part of the banks, but not in accordance with the interests of depositors and creditors.

Banking law should provide certain guarantees for depositors and other persons who use the services of credit institutions.

All these guarantees, in our opinion, can be classified depending on the method of ensuring the rights and legitimate interests of depositors and creditors:

a) organizational;

Control over the functioning of the bank belongs to the sphere of banking law. According to the current legislation, depositors and other persons using banking services are subjects of civil, but not banking law. Therefore, they cannot control the correctness of banking operations or, say, compliance with economic standards.

To organize the banking system in such a way that it is sufficiently reliable is the competence of the Bank of Russia. The Bank of Russia regulates and controls banking activities, and therefore it is obliged to ensure that credit institutions exercise due diligence in dealing with borrowed funds from others.

But besides the Bank of Russia, there are other state and non-state organizations that must or can protect the rights and interests of bank customers.

Organizational guarantees can be classified according to those institutions that are charged with the responsibility of protecting persons using banking services.

According to the separation of powers, this can be the organizational activity of the legislative, executive and judicial bodies.

Further, one should distinguish between the organizational activities of state institutions and the institutions of civil society itself.

And here it must be said that in Russia the activity of public organizations created by bank clients is insufficient, unlike in many foreign countries. For example, in France, in accordance with Art. 59 of the Banking Law established an advisory committee known as the “Users Committee”, which is intended to “study problems associated with the relationship between credit institutions and their clients and suggest necessary improvements.”

It is interesting to note that the French Users Committee is composed on a parity basis of representatives of credit institutions and representatives of the clientele.

We will talk about this in more detail when we talk about proposals for legal restructuring in the banking system, but for now, we note that the creation of public institutions is, as it were, supposed based on the very classification of guarantees.

When accepting deposits from individuals and legal entities and conducting settlements, credit institutions are obliged to protect their depositors and clients from possible losses. Chapter III “Ensuring the stability of the banking system, protecting the rights and interests of depositors and creditors of credit institutions” of the Federal Law “On Banks and Banking Activities” provides for a number of norms aimed at ensuring the financial reliability of a credit institution.

Much depends on how the monetary authorities observe the principles of civil society. The democratic nature of banking law (majority rule) is not implemented by itself. Calls for the protection of depositors and creditors are not enough here. The Bank of Russia is obliged to exercise prudential regulation and prudential supervision, including in order to ensure the interests of depositors and clients of credit institutions.

b) financial;

In order to ensure financial reliability, a credit institution is obliged to create reserves (funds), including for the depreciation of securities, the procedure for the formation and use of which is established by the Bank of Russia. The minimum amounts of reserves (funds) are established by the Bank of Russia. The amount of deductions to reserves (funds) from profit before taxation is established by federal tax laws.

A credit institution is obliged to carry out the classification of assets, separating doubtful and bad debts, and create reserves (funds) to cover possible losses in the manner established by the Bank of Russia.

A credit institution must comply with mandatory standards established in accordance with the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”. The numerical values ​​of mandatory ratios are established by the Bank of Russia in accordance with the specified Federal Law.

A credit institution is obliged to organize internal control that ensures an appropriate level of reliability corresponding to the nature and scale of the operations carried out (Article 24 of the mentioned Law). The bank is obliged to comply with the standard of required reserves deposited with the Bank of Russia, including the terms, volumes and types of funds raised. The procedure for depositing required reserves is determined by the Bank of Russia in accordance with the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”. The bank is required to have an account with the Bank of Russia for storing required reserves. The procedure for opening the said account and carrying out transactions on it is established by the Bank of Russia (Article 25 of the mentioned Law).

The role of banking law in protecting interests and rights has a very specific implementation in all its regulatory and protective functions, banking law must ensure the protection of customers and depositors through the mechanisms provided for in the law or in by-laws adopted on its basis, which may include deposit insurance schemes , reserve requirements and other means. The need to maintain the confidence of bank customers is so essential that in connection with this, in many countries a financial deposit insurance mechanism has been created along the lines of the US Federal Deposit Insurance Corporation. This mechanism has some differences in different countries, but the main thing is that it exists. For example, in France, when the position of the credit institution justifies it, the Governor of the Bank of France may, in accordance with Art. 52 of the Banking Law, organize a competition with the participation of all credit institutions in order to take the necessary measures to protect the interests of depositors and third parties, maintain the normal functioning of the banking system and preserve its reputation.

The Bank of Russia is obliged to ensure that guarantees are created for the return of deposits of individuals and legal entities.

The deposit insurance system in Russia has not yet been created. The only financial source of possible compensation for the losses of depositors and creditors may be the mandatory reserve fund, which is returned to the credit institution from the Bank of Russia after its license is revoked and a liquidation commission is created. However, this cannot replace the deposit insurance system.

Considering the situation with the protection of deposits, it is difficult to agree with the position that it is possible to do without the mandatory creation of reserves using other means.

The legal regulation of required reserve funds in Russia is contradictory. Within the meaning of the Federal Law “On Banks and Banking Activities” (and not only within the meaning, if you look at the title of Chapter III, which contains the requirement to create funds: “Ensuring the stability of the banking system, protecting the rights and interests of depositors and creditors of credit institutions”) , the required reserve fund in Russia should be created to protect the rights and interests of depositors and creditors. The Law does not mention any multiplier, or limiting emissions, or limiting the issuance of loans by banks.

The depositor reads the Federal Law “On Banks and Banking Activities”, which states that funds are created to protect his interests and rights. But he, as a rule, is not knowledgeable about how this issue is regulated by the regulations of the Bank of Russia itself. The regulations of the Bank of Russia provide for a different goal: a mandatory reserve fund is created primarily to limit the lending capabilities of a commercial bank. If this had been stated in the Federal Law “On Banks and Banking Activities”, then the depositor would not be so sure that he was not at risk.

c) informational;

It is known what role information plays in the financial and banking market.

There are many reasons. If we talk about the prerequisites for the value that information acquires in the banking system, then in the origins it all starts with the essence of money. One of the functions of money, as already mentioned, is information about their value. With this function at the level of the banking services market, in one way or another, all the functions of institutions that collect, analyze, process and provide relevant banking information for use are connected. For example, this may be information about the financial position of a particular bank. Such and other information is necessary for clients of credit institutions.

Having information about the bank and banking activities, the client can operate in the conditions of general competition to his advantage. By engaging in banking, he essentially gets the opportunity to predict the development of his mini-monetary system in other monetary systems. In other words, he foresees an increase in the value of a particular amount of money or, conversely, a possible fall in this value. In this sense, while receiving profit and income from an investment, he must pay for the collected and analyzed information, for the market forecast that has brought him or can still bring profit in the form of monetary interest.

The rentier must pay for information that generates income for him. Naturally, a small client, a small investor cannot do this. But small investors are the bulk of all investors. This is the first thing. Secondly, banks play a specific role in the economy. In this sense, their activities are public. Therefore, all banking clients should be provided with standard information collected by public institutions.

The central bank is just such a public institution. But in this area of ​​relationships there are many difficulties.

Firstly, there is the problem of competition, commercial and banking secrecy. In this regard, much depends on banking legislation and the practice of its application. Unfortunately, this practice suffers from disadvantages. Objectively existing problems with banking secrecy sometimes take on the opposite meaning - banking and commercial secrets are used as a cover for abuse. This will be discussed further in relation to the consideration of the issue of banking supervision by the Bank of Russia, the serious shortcomings of this supervision and how it needs to be improved (Shevchuk D.A. Fundamentals of Banking. - Rostov-on-Don: Phoenix, 2006).

Secondly, there is the problem of the reliability of financial and banking information. As already mentioned, the economy in its causal characteristics can be rational, irrational and mixed. Most often, it is dominated by irrational moments, especially during crises. Therefore, there is always a risk of false information about banks. Naturally, this risk is greater where there is more corruption, crime, etc.

Thirdly, there is the problem of asymmetric information. It is precisely the depositor who has the least ability to independently collect and analyze banking information. In conditions when the banking system is not debugged, the risk of informational delusion always increases.

In Russia, given the specifics of the economy, the role of information support for depositors is becoming increasingly important.

This is clearly seen in the example of deposit insurance. In Art. 840 “Ensuring the return of deposits” of the Civil Code of the Russian Federation provides the following: “1. Banks are obliged to ensure the return of citizens’ deposits through compulsory insurance, and in cases provided for by law - in other ways. Return of citizens’ deposits by a bank whose authorized capital contains more than fifty percent of shares or participation interests have the Russian Federation and (or) constituent entities of the Russian Federation, as well as municipalities, in addition, is guaranteed by their subsidiary liability for the depositor’s claims to the bank in the manner prescribed by Article 399 of this Code.

2. Methods for the bank to ensure the return of deposits of legal entities are determined by the bank deposit agreement.

3. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit.

4. If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in case of loss of security or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount determined in accordance with clause 1 Art. 809 of this Code, and indemnification of the caused losses".

Banking law provides a list of information that should be available to depositors and all other persons using the services of credit institutions. The Law “On Banks and Banking Activities” states that banks are required to provide the information necessary for the depositor to make the right choice.

The Bank of Russia has not issued any instructions on this issue. Meanwhile, it would be advisable to regulate the mandatory list of information in the bank's office, presented for public viewing. This should be information about the founders, about the authorized fund, about the reserve fund, about the balance sheet, about profits and losses, about membership in the deposit insurance fund. If the bank does not participate in the deposit insurance fund, then information about this should be presented in the list in the same way.

d) legal.

In order for the protection of depositors and creditors to become real, laws, other normative acts and, most importantly, mechanisms for their implementation must be created.

First, it is the law itself. It should not be contradictory in its form. To date, such contradictions exist, and there are quite a lot of them. There are even more contradictions between the legislation and the regulations of the Bank of Russia - they have already been discussed and will be discussed further in relation to specific issues of banking regulation and supervision.

Secondly, it is the law enforcement activity of regulatory and law enforcement agencies. There are many unresolved issues here.

The example of bank depositors is the most illustrative. The judiciary was physically unable to deal with the huge number of cases. Sanctions will not help matters here. This situation can be overcome only if the procedure for the operation of the entire system of credit institutions as such is regulated. In parallel, it is necessary to provide for the personification of the civil liability of founders (participants) and managers, through whose fault the financial situation of a credit institution has deteriorated.

Various publications have repeatedly raised the issue of improving the legal protection of banking customers.

It is interesting to note the reaction of the Bank of Russia to the appeal of the Association of Russian Banks, whose representatives proposed a number of measures to strengthen the legal protection of deposits. Thus, in particular, it was proposed that the Bank of Russia accrue interest on the funds of the mandatory reserve fund. In our opinion, if civil law provides that you have to pay for the use of other people's money, then this equally applies to all entities, including the Bank of Russia. Equality of all before the law and justice.

Author: Shevchuk D.A.

<< Back: Concept and content of banking offenses (The concept and composition of banking legal relations. Objects of banking legal relations. Subjects of banking legal relations. Subjective rights and obligations)

>> Forward: Legal status of a credit organization (The concept and characteristics of a credit organization. Legal capacity of a credit organization. Authorized capital and other funds of a credit organization. Legal status of the founders (participants) of a credit organization. Payment of contributions to the authorized capital of credit organizations in foreign currency. Payment of the authorized capital of credit organizations with federal loan bonds with a constant coupon income and cash. The procedure for creating and licensing a credit organization. Revocation of a license from a credit organization)

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