Topic 7. LEGAL STATUS OF THE BANK OF RUSSIA

The origin of central (issuing banks) and their essence

The emergence of money and monetary power historically coincides with the emergence of the state and law.

According to historians, as well as various experts involved in the study of the origin of the state and law, the first states appeared in ancient times, in the East, about V-VII thousand years BC. They arose as a result of the emergence of private property and the division of society into so-called classes, that is, into such large groups of people who differ in their historically determined place in the system of social production.

Along with private property came the economic power of owners.

With the development of commodity exchange, money and commodity-money turnover appeared. The role of money was played mainly by a homogeneous and easily divisible commodity with its own value, most often gold.

With the advent of money, it became possible to hire a certain part of the people and oppose them to the rest of society in order to maintain the economic power of the owners. A special public authority arose that did not coincide with society itself - the state. A layer of officials gradually formed, relying in their activities on coercive force - the army, police, courts and prisons.

The state at all times to some extent regulated the legal regime for the use of money: the methods of minting coins, collecting taxes, etc. But the monetary system itself developed in a purely market way without state intervention. Therefore monetary power as such was only economic power. The state did not create bodies that would regulate the monetary system or be responsible for the issue of money.

Initially, the state was limited to creating general conditions and maintaining law and order. Legal measures were predominantly punitive in nature: liability for counterfeiting money, theft and other crimes.

The state treasury was formed at the expense of taxes. Otherwise, the state was an ordinary subject of monetary relations.

At first, as historians write, money changers and usurers appeared, and then, starting from the XNUMXth century, more complex formations - banks, which eventually began to issue their own money (banknotes). Banknotes were exchanged for gold and other precious metals.

Independence of the Central Bank of the Russian Federation

At present, when discussing the independence of the Bank of Russia, such aspects as the size of the country's foreign exchange reserves, the participation or non-participation of the Federation Council in interaction with the Bank of Russia through the National Banking Council, and the strengthening or weakening of the ruble have become particularly acute. In this regard, in the last chapter, we considered a draft legislative reform of the status of the Bank of Russia.

Article 75 of the Constitution of the Russian Federation clearly enshrines the principle of independence of the Bank of Russia:

"1. The monetary unit in the Russian Federation is the ruble. Monetary issue 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 allowed.

2. Protecting and ensuring the stability of the ruble is the main function of the Central Bank of the Russian Federation, which it performs independently of other state authorities."

The fact that the Constitution of the Russian Federation provides the Bank of Russia with a special and independent status is essentially not disputed by anyone. However, many authors disagree on the question of what degree of independence the Bank of Russia should have. There is also no unity in assessing ways to ensure its independence. This is partly due to political considerations. Thus, some legislators and experts believe that the State Duma can strengthen its influence on economic management through measures such as direct management of the Bank of Russia. The question of the independence of the Bank of Russia has come to the forefront of Russian political life. It should be said right away that this is not only a legal, but also, first of all, an economic issue and therefore its full study is possible only using the methods of a new scientific direction called constitutional economics. At the same time, all terms, including “constitution”, “independence” and “accountability”, need to be checked both from the point of view of the exact meaning of these terms and discrepancies, for example, the meaning of the concepts “constitution”, “constitutional” in Russian and English languages, since the English term has a broader meaning. According to his approach, if this terminological difference is not taken into account, many Western concepts, including constitutional economics and the independence of central banks, can be distorted when translated into Russian. In particular, the concept of "accountability" is often translated as "accountability", instead of the correct meaning of "responsibility".

Now let's move on to the analysis of the status of the Bank of Russia in terms of the following main parameters:

▪ special and independent status;

▪ independent implementation of functions;

▪ organizational unity of management;

▪ property and financial independence;

▪ scope of civil legal capacity. The first parameter allows us to determine how isolated the central bank is from government authorities. This factor is crucial to ensure his independence. The second parameter shows the degree of independence of the central bank in making decisions and performing the tasks assigned to it. The independent exercise of functions largely depends on the completeness and clarity of the rights and responsibilities of the central bank. The absence of competing competences of the central bank and executive authorities is also of considerable importance. The third parameter evaluates the unity of the management structure, which does not allow internal conflicts and contributes to the effective implementation of functions. Conflicts (confrontation) between the governing bodies of the central bank lead to interference in its activities by government bodies. The fourth parameter determines the sufficiency of material resources and guarantees of financial (budgetary) independence of the central bank. The fifth parameter assesses the possibilities of participation of the central bank in civil legal relations. Limitation of civil legal capacity prevents the implementation of many functions of the central bank and reduces the degree of its property and financial independence.

Special status of the Bank of Russia

As noted above, the Constitution of the Russian Federation assigns a special and independent constitutional legal status to the Bank of Russia. Only he has the right to issue money in the Russian Federation. Only he was given the function of protecting and ensuring the stability of the ruble. At the same time, any interference in his activities for the implementation of these functions is not allowed (Article 75). The constitutional and legal status of the Central Bank of the Russian Federation is ensured by a number of other norms of the Constitution.

In accordance with the requirements of paragraph "g" of Article 71 of the Constitution of the Russian Federation, money emission falls under the jurisdiction of the Russian Federation. Thus, the Constitution establishes an additional guarantee of the exclusive right of the Central Bank to issue money (Part 1 of Article 75). Subjects of the Russian Federation do not have such a right.

The Constitution classifies federal banks, including the Central Bank, as federal economic services (clause “g” of Article 71), thereby indicating that they are not part of the general structure of the separation of powers, are under the exclusive jurisdiction of the federation, and are endowed with special monetary functions. credit policy.

This conclusion is confirmed by a more detailed analysis of constitutional norms. The Constitution does not mention the Bank of Russia among the bodies exercising state power in the Russian Federation. In accordance with the provisions of Article 11, they include the President, the Federal Assembly (the Federation Council and the State Duma), the Government and the courts of the Russian Federation.

The provisions of the Constitution that establish the principle of separation of powers into legislative, executive and judicial (Article 10) also do not apply to the Central Bank, since the Central Bank of the Russian Federation is not assigned to any of the above branches of power. Such a decision, it seems, was not accidental, since the Central Bank is entrusted with functions of state power that are special in nature. They are not as universal as the functions of the presidential, legislative, executive and judicial branches of power. They are limited in scope and do not affect the functioning of other public authorities.

It should also be emphasized that the principle of independence of the Central Bank excludes it from the system of separation of powers, since the separation of powers presupposes a special mechanism of “checks and balances” that does not allow the independence of some government bodies from others. It is very noteworthy that in relation to such branches of government as the legislative, executive and judicial, the Constitution uses the term “independent”. There can be no independence in their relationship. The Constitutional Court of the Russian Federation has repeatedly drawn attention to this fact.”

Finally, we note the fact that the authors of the Constitution sought to secure the independence of the Central Bank in every possible way. This is evidenced not only by the categorical wording of Article 75 of the Constitution, but also by the fact that the status of the Central Bank is enshrined in Chapter Three - in that part of the Constitution that is devoted to the federal structure of the Russian Federation. It follows from this that the Constitution actually removes the Central Bank from the general system of organization of state power and equally distances it from both federal and regional bodies.

This conclusion is also confirmed by a comparative legal analysis of the constitutional regulation of those bodies that, along with the Central Bank, are not included in Article 1 1 of the Constitution among the bodies exercising state power. We are talking here about such constitutional bodies as the Prosecutor's Office and the Accounts Chamber. The status of these bodies is directly enshrined in the Constitution itself. But unlike the Central Bank, they do not have an independent status. The prosecutor's office is included by the Constitution in the orbit of the judiciary. This is evidenced by the very fact of fixing the norms on the prosecutor's office in the seventh chapter of the Constitution ("Judicial Power"). The Accounts Chamber is included in the framework of the legislative power, which is confirmed by the relevant constitutional norms of the fifth chapter of the Constitution, dedicated to the Federal Assembly.

Concluding the question of the constitutional framework of the status of the Bank of Russia, we can note the following main features.

1. The Central Bank of the Russian Federation has an independent constitutional status.

2. The Central Bank of the Russian Federation is not included in the system of any of the branches of government.

3. The Central Bank of the Russian Federation performs functions of state power that are special in their legal nature.

4. Other state authorities may not interfere in the exercise of the constitutional functions of the Central Bank of the Russian Federation.

5. The principle of independence of the Central Bank excludes any "checks and balances" from other public authorities.

6. The status of the Central Bank is established directly by the Constitution and can only be changed by reviewing the Constitution itself.

7. The Central Bank is a permanent constitutional body. Its activities cannot be terminated or suspended until the Constitution itself is changed.

It should be noted that a similar status has been granted to central banks in many states. Thus, the Organic Law "On the Central Bank of Chile" of 1976 provides that "the Central Bank is an independent body that has an independent constitutional status, has the rights of a legal entity and has an unlimited term of office ... The Bank, in exercising its functions and powers, is guided solely by rules of this Organic Law and shall not follow any other general or special provisions of public law" (Articles 1 and 2). In Yugoslavia, the Constitution defines the Central Bank as "an independent institution of the monetary system" (Article 114). The Law "On the National Bank of Bulgaria" of 1997 clearly states that "in the performance of its functions, the Bank must be independent of any interference from the Council of Ministers and other state bodies" (Article 4). And the South African Constitution requires that the Bank of South Africa "act in the pursuit of its essential purpose independently, without fear, preference or prejudice" (art. 224).

By securing the independent status of the Central Bank, the authors of the Constitution of the Russian Federation sought to solve the following tasks - to ensure the independence and protection of the monetary system of the Russian Federation, to exclude intrusion into the constitutional competence of the Central Bank, to protect it from market demands and momentary requests of other state authorities. At the same time, the authors of the Constitution sought to eliminate threats to the independence of the Central Bank from both the Federal Assembly and the Government of the Russian Federation.

The fact is that many legislators, as the experience of the Supreme Soviet of Russia showed, saw a panacea for all economic ills in the issue of money. Even now, many deputies believe that to solve economic problems, it is enough to turn on the "printing press". At the same time, the consequences that the issuance of unsecured money can lead to are not taken into account. It was these factors that predetermined at one time the need for such an unconditional recognition in the Constitution of the principle of independence of the Central Bank.

The validity of this conclusion is confirmed by the position of the Constitutional Court, formulated in the Ruling of December 14, 2000 at the request of the Supreme Court to verify the constitutionality of part 3 of Art. 75 of the Law on the Bank of Russia. In this document, in particular, it is noted: "The status of the Central Bank of the Russian Federation is established by the Constitution of the Russian Federation, in Article 75 of which its exclusive right to issue money (Part 1) is defined and as its main function - protection and stability of the ruble ( Part 2). These powers, by their legal nature, relate to the functions of state power, since their implementation involves the use of measures of state coercion. The normative powers of the Bank of Russia imply its exclusive rights and obligations to establish rules binding on state authorities, all legal entities and individuals conduct on issues within its competence and requiring legal regulation. At the same time, the Constitutional Court points out that the legislator should "proceed from the special constitutional and legal status of the Bank of Russia."

In the light of the foregoing, it can be noted that the Constitution establishes rather strict guarantees of the independent status of the Bank of Russia, which, unfortunately, are not fully observed in the current legislation. In this regard, attention should be paid to Articles 5 and 87 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)".

Part two of Article 5 of the Federal Law establishes the following provision: "The Bank of Russia, within the limits of its powers granted to it by the Constitution of the Russian Federation and federal laws, is independent in its activities. Federal state authorities, state authorities of the constituent entities of the Russian Federation and local governments do not have the right to interfere in the activities of the Bank of Russia in the exercise of its legally enshrined functions and powers, to make decisions that are contrary to this Federal Law.

Thus, in this norm, not only the powers, but also the independence of the Central Bank of the Russian Federation is limited to the framework provided by the legislator in federal laws. Such a provision does not meet the constitutional requirements for the independence of the Central Bank, since Part 2 of Article 75 of the Constitution of the Russian Federation does not require any specification, and its operation cannot be limited by federal law.

Part 1 of Article 5 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" establishes the requirement that the Bank of Russia be accountable to the State Duma. This provision, in our opinion, contradicts the requirements of Part 2 of Article 75 of the Constitution of the Russian Federation, since the principle of independence of the Bank of Russia from other state authorities excludes any form of dependence, including accountability to anyone.

In this regard, the following should be noted. As noted above, the Bank of Russia has an independent constitutional and legal status. He is endowed with exclusive powers. Interference in their implementation is not allowed. Taking into account these requirements of the Constitution, the relationship of the Bank of Russia with other public authorities should be based on the principles of equality of parties, and not accountability, since from a constitutional and legal point of view, accountability means dependence or subordination of one body to another.

The same Part 1 of Article 5 of the Federal Law specifies the forms of accountability of the Bank of Russia to the State Duma. In particular, it was established that the appointment and dismissal of the Chairman of the Central Bank are carried out by the State Duma on the proposal of the President of the Russian Federation, that members of the Board of Directors are appointed and dismissed by the State Duma, that the Central Bank submits to the State Duma for consideration an annual report and an audit report that the State Duma determines an audit firm to conduct an audit of the Central Bank of the Russian Federation. Such provisions do not comply or do not fully comply with the requirements of the Constitution of the Russian Federation. In this regard, the following should be emphasized.

1. Fixing the principle of independence of the Central Bank of the Russian Federation precludes any form of its accountability. As noted above, we can only talk about equality and interaction between public authorities.

2. The above powers of the State Duma do not fall into the list of those issues that, in accordance with Article 103 of the Constitution, are transferred to its jurisdiction. The expansion of the powers of the State Duma should be carried out in the order of the revision of the Constitution itself, and not through the adoption of federal laws.

3. Assigning the relevant powers to interact with the Bank of Russia only to the State Duma infringes on the constitutional rights of the Federation Council - the second chamber of the Federal Assembly of the Russian Federation. Issues of interaction with the Bank of Russia should be under the jurisdiction of the Federal Assembly as a whole, since the Constitution does not grant any of the chambers the exclusive right to interact with the Central Bank of the Russian Federation.

4. According to the Constitution of the Russian Federation, the State Duma is not endowed with control powers. Therefore, it is necessary to recognize the inadmissibility of such forms of control over the Central Bank of the Russian Federation as the consideration of annual reports on the activities of the Central Bank, the appointment of an audit firm to conduct an audit of the Central Bank of the Russian Federation, etc. Expansion of the control powers of the State Duma, especially in this matter , as the activity of the Central Bank, requires a revision of the Constitution itself in terms of the powers of both the State Duma itself and the status of the Central Bank of the Russian Federation.

5. Certain forms of accountability of the Central Bank do not comply with the requirements of the Constitution of the Russian Federation. For example, fixing the constitutional principle of independence of the Central Bank excludes such a form of accountability as the appointment and dismissal of the chairman and members of the Board of Directors of the Central Bank. It is unacceptable to link the issues of appointment and removal from office with forms of accountability, since the right of the State Duma to participate in resolving personnel issues acquires a completely different meaning in the context of the accountability of the Bank of Russia. In this context, this provision serves the purpose of interfering in the activities of the Central Bank of the Russian Federation by changing or threatening to change its leadership.

However, the most serious objections are raised by Article 87 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", according to which the Bank of Russia can be liquidated on the basis of the adoption of the relevant federal law. According to the Constitution of the Russian Federation, the Central Bank of the Russian Federation has an independent constitutional and legal status. Only he is endowed with exclusive rights to issue money, protect and ensure the stability of the ruble (Article 75). In the event of liquidation of the Bank of Russia, these constitutional functions will not be implemented. It is easy to imagine what consequences this may have for the country's economy.

In this connection, we also note the following circumstance. The specified provision of Article 87 actually negates the constitutional guarantees of the independence of the Central Bank, forcing it to be more "compliant" in view of the threat of its liquidation. Such norms of legislation do not comply with the constitutional requirements for the independent status of the Bank of Russia.

Functions of the Bank of Russia

One of the foundations of the constitutional order of the Russian Federation is the unity of the economic space (Part 1 of Article 8 of the Constitution). In many ways, it is ensured by the unity of the country's monetary system. The monetary unit of the Russian Federation is the ruble. The introduction and issue of other money in the Russian Federation is not allowed (Part 2 of Article 75 of the Constitution). The issue of money is assigned by the Constitution to the jurisdiction of the Russian Federation (clause "g" of Article 71) and is carried out exclusively by the Central Bank of the Russian Federation (Part 1 of Article 75). At the same time, the Constitution of the Russian Federation clearly establishes its main tasks - the protection and stability of the ruble (Part 2 of Article 75).

As noted above, the functions of the Central Bank of the Russian Federation for issuing money, protecting and securing the ruble have a special legal nature. They undoubtedly relate to the functions of state power, since the Central Bank, in the exercise of these functions, acts on behalf of the state, is endowed with power, has the right to apply measures of state coercion. If this obvious fact is not recognized, one can not only confuse the issue of the functions of the Central Bank, but also cast doubt on the legality (legitimacy) of the current Russian currency as a "product" of the activities of the Central Bank of the Russian Federation.

At the same time, these functions remain outside the scope of general constitutional regulation, since the Central Bank of the Russian Federation is removed from the framework of three separate powers - legislative, executive and judicial.

This feature of the constitutional consolidation of the functions of the Central Bank, it seems, is designed to solve the following tasks: to ensure the independence and protection of the monetary system of the Russian Federation, to exclude intrusion into the constitutional competence of the Central Bank, to protect it from market requirements and momentary requests of other state authorities.

Exactly the same tasks are solved by the legislation of many foreign countries. Thus, the Law "On the Autonomy of the Bank of Spain" of 1994 indicates that "in the field of monetary policy, the Bank should not receive instructions from the government or the Minister of Economy and Finance, which will allow it to carry out its policy in the interests of the main goal - maintaining price stability" (Preamble Law). The Law "On the Bank of England" of 1998 establishes that the main goal of the Bank of England is "maintaining price stability, and also, if this does not contradict this goal, promoting the economic policy of the Government" (Article 11). The law "On the Bundesbank" determines that the main goal of the Bank of Germany is price stability (Article 1).

The guarantees of functional independence are most clearly defined in Articles 105 and 107 of the Maastricht Treaty: "The main objective of the European System of Central Banks shall be the maintenance of price stability ... In the exercise of the powers and in the exercise of the tasks and duties assigned to them by this Treaty and the Statute of the European System of Central Banks neither the European Central Bank nor the national central banks nor any member of their governing bodies shall seek or receive instructions from Community institutions or authorities, from any government of a Member State, or from any other authority. The Communities, as well as the governments of the Member States, undertake to respect this principle and not to attempt to influence the members of the governing bodies of the European Central Bank or national central banks in the performance of their tasks."

It is necessary to dwell in more detail on the constitutional powers of the Bank of Russia to issue money, protect and ensure the stability of the ruble.

The Constitution assigns to the Central Bank the exclusive right to issue money (Part 1 of Article 75). This provision excludes the right of other public authorities, any institutions and organizations to issue ruble emission or issue other payment signs that perform the function of money.

Carrying out the function of money emission assigned to it, the Central Bank of the Russian Federation issues cash, organizes their circulation, determines and regulates the amount of money supply in circulation. Any interference in the issues of money emission is unacceptable. In this area, the Central Bank of the Russian Federation is endowed with exclusive rights and should not be subject to any influence from other state authorities.

More complex questions arise when analyzing the constitutional norm on the functions of the Central Bank of the Russian Federation to protect and ensure the stability of the ruble. The current legislation provides for a fairly extensive list of powers of the Bank of Russia, which ensure the implementation of its constitutional function to protect and ensure the stability of the ruble.

In order to organize cash circulation, the Bank of Russia performs the following functions: forecasting and organizing production, transportation and storage of banknotes and coins, creation of their reserve funds; establishing rules for the storage, transportation and collection of cash for credit institutions; establishing signs of the solvency of banknotes and the procedure for replacing damaged banknotes and coins, as well as their destruction; determination of the procedure for conducting cash transactions (Article 34 of the Law on the Bank of Russia).

The main instruments and means of the monetary policy of the Bank of Russia are:

▪ interest rates on Bank of Russia operations;

▪ standards for required reserves deposited with the Bank of Russia (reserve requirements);

▪ open market operations;

▪ refinancing of banks;

▪ currency regulation;

▪ establishing benchmarks for money supply growth;

▪ direct quantitative restrictions;

▪ issuing bonds in one's own name (Article 35 of the Law on the Bank of Russia).

In more detail, the Law on the Bank of Russia regulates the procedure for the formation of required reserves of credit institutions (Article 38); issues of Central Bank operations on the open market for the sale and purchase of treasury bills, government bonds and other government securities (Article 39); organization of refinancing (Article 40); implementation of foreign exchange interventions (Article 41); establishment of direct quantitative indicators (art. 42); determination of benchmarks for the growth of money supply indicators (Article 43).

In accordance with Article 44 of the Law on the Bank of Russia, the Central Bank annually, no later than October 1, submits to the State Duma a draft of the main directions of the unified state policy and no later than December 1 - the main directions of the unified state monetary policy for the coming year. The previously specified document is sent to the President and the Government of the Russian Federation. It should include an analysis of the state and forecast of the development of the economy, as well as the main guidelines, parameters and instruments of a single state monetary policy.

In addition to the above, we can mention a number of other powers of the Bank of Russia, which are directly related to ensuring its constitutional function of protecting and ensuring the stability of the ruble. First of all, we are talking about the formation of gold and foreign exchange reserves and the implementation of foreign exchange control.

Of considerable importance in protecting the stability of the ruble is the exercise of control over the activities of credit institutions, as well as the participation of the Bank of Russia in the capital of systemically important banks. The question of the participation of the Central Bank in the capital of systemically important banks should be dealt with separately.

Articles 7, 8, paragraph 2 of article 48 of the Law on the Bank of Russia establish that it cannot participate in the capital of other credit institutions, unless otherwise provided by federal laws or international treaties of the Russian Federation. The question of the participation of the Central Bank in the capital of credit institutions can only be decided by law. Such norms infringe upon the rights of the Bank of Russia and limit the application of the set of measures that may be required to protect and ensure the stability of the ruble. One of the generally recognized measures to stabilize the monetary system is participation in the capital of other credit institutions. Often this measure becomes the only means that can be used to prevent the collapse of the national currency. Modern history provides many examples of this. It also indicates that one of the causes of the systemic crisis of the monetary system is the inability (unwillingness) of central banks to support commercial banks through participation in their capital.

In general, the legislation establishes a sufficient amount of powers of the Bank of Russia to implement its main function - protecting and ensuring the stability of the ruble.

However, a number of norms raise reasonable doubts. First of all, attention should be paid to the requirements of Art. 22 of the Law on the Bank of Russia, according to which the Central Bank must not provide loans to finance the budget deficit, buy government securities at their initial placement, except when it is provided for by the federal law on the federal budget. Such an obligation, established by law, may in practice hinder the implementation of the constitutional function of the Bank of Russia to protect and ensure the stability of the ruble.

The current Law on the Bank of Russia also contains a number of other rules that make it possible to intervene in the monetary policy of the Central Bank. Thus, Article 2 provides that the state is not liable for the obligations of the Bank of Russia, and the Bank of Russia - for the obligations of the state, unless otherwise provided by federal laws. Through the adoption of federal laws, the Central Bank of the Russian Federation may be required to answer for any debts of the state, which will inevitably entail the need for additional emission, the introduction into circulation of an unsecured money supply.

The question of in what cases and to what extent the Central Bank of the Russian Federation can assume the obligations of the state should be decided by the Bank of Russia itself, taking into account the needs that are dictated by the need to maintain the country's monetary system. Otherwise, his exclusive rights to issue money, protect and ensure the stability of the ruble will be violated.

Let's give one more example of "legislative intervention" in the competence of the Central Bank of the Russian Federation. Article 23 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" establishes that the funds of the federal budget and state off-budget funds are kept in the Bank of Russia, unless otherwise provided by federal laws. This provision of the Federal Law contains a potential threat of the Central Bank of the Russian Federation being replaced by other credit institutions, which will inevitably affect the function of money emission, since in this case the Bank of Russia is deprived of the opportunity to use one of the most effective means of organizing circulation and regulating the volume of money supply.

In this regard, we also note the fact that the implementation of this norm can eliminate the existing very effective mechanism for monitoring the receipt and expenditure of budgetary funds.

Finally, it is necessary to pay attention to the following circumstance. In accordance with paragraph 14 of Art. 4 of the Law on the Bank of Russia, the competence of the Central Bank is limited to those powers that are established by federal laws. From this we can conclude that the Bank of Russia can only take those actions for which it is authorized directly by law. This limitation does not seem to be entirely justified. Legislation, by definition, cannot establish an exhaustive list of those measures that may be required to protect and ensure the stability of the ruble. The choice of certain measures should be determined by the Bank of Russia in each specific case, taking into account the real needs for protection and ensuring the stability of the ruble. Otherwise, the Central Bank will be deprived of the opportunity to provide the most effective regulation in this area of ​​public life.

Obviously, when consolidating the functions of the Bank of Russia, the legislator relied on a restrictive interpretation of constitutional norms, artificially narrowing the scope of their application. This approach does not seem to be justified. The Constitution of the Russian Federation establishes the basic principles and norms, the effect of which cannot be canceled or limited by law or other legal act. We also note that the function of interpreting the Constitution belongs to the Constitutional Court, and not to the Federal Assembly.

Concluding the question of the functional independence of the Bank of Russia, it is necessary to consider the question of how its competence correlates with the powers of the Government of the Russian Federation. According to the Constitution of the Russian Federation, the Government ensures the implementation of a unified financial, credit and monetary policy in the Russian Federation (point "b" of part 1 of article 114). This constitutional provision, it seems, should not cause any conflicts with the norms of Art. 77. Each of these bodies has its own tasks, they have a different status, have different rights, solve issues of credit and monetary policy with their own, only their own means.

However, the possibility of conflicts cannot be ruled out. In the absence of direct subordination between them, they can be resolved only on the basis of agreement (consensus). If the conflicts between the Government and the Central Bank turn out to be unresolvable, the priority in protecting and ensuring the stability of the ruble should remain with the Central Bank. After all, the Constitution entrusts him with the functions of protecting and ensuring the stability of the ruble, emphasizing that these functions should be carried out independently of other state authorities, including the Government of the Russian Federation.

Management of the Bank of Russia

The Constitution of the Russian Federation does not define the management structure of the Central Bank, limiting itself only to the issue of appointing and dismissing the Chairman of the Bank of Russia. The candidate for this position in the State Duma is presented by the President of the Russian Federation. He also puts before the State Duma the question of dismissing the Chairman of the Bank from office (clause "d" of Article 83 of the Constitution). The very same appointment to office and dismissal from office is carried out by the State Duma (paragraph "c" of Article 103 of the Constitution). Thus, the Constitution itself establishes such "checks and balances" that exclude the possibility of appointing or dismissing the Chairman of the Bank of Russia by decision of only one of the state authorities.

The structure of the governing bodies of the Central Bank is established by the Law on the Bank of Russia. In addition to the Chairman, it includes the Board of Directors as the highest collegial governing body of the Bank of Russia. It should be noted that in this matter the Law on the Bank of Russia follows not only the historically established tradition, but also those models that were accepted by most foreign countries.

As Professor O.E. Kutafin, The Law on the Bank of Russia establishes an important principle of the organizational unity of the Central Bank's management bodies. This principle is manifested, in particular, in the fact that the Chairman of the Bank of Russia ex officio heads the Board of Directors. Members of the Board of Directors are appointed and early dismissed by the State Duma on the proposal of the Chairman of the Bank of Russia. Decisions of the Board of Directors may be adopted only if the Chairman of the Bank or a person replacing him is required to attend the meeting.

Thus, the Law on the Bank of Russia assigns a special role to the Chairman in the organizational structure of the management of the Central Bank. This role is predetermined by the very fact of enshrining in the Constitution only the position of the Chairman of the Bank of Russia. For the same reason, the Law establishes that the Chairman of the Bank of Russia acts on behalf of the Bank of Russia, represents its interests in relations with state authorities, organizations and institutions, and bears full responsibility for its activities (Article 18 of the Law on the Bank of Russia).

We also note the internal consistency of the legislative consolidation of the powers of the bodies of the Bank of Russia, which also serves the purpose of ensuring the unity of its management structure.

At the same time, it should be noted that the Law on the Bank of Russia provides for a number of significant guarantees for the collective management of the Central Bank. As noted above, the appointment and early dismissal of members of the Board of Directors are made by the State Duma. Meetings of the Board of Directors are held at least once a month. They can be convened not only by decision of the Chairman, but also at the request of at least three members of the Council. Meetings of the Board of Directors are competent if there is a quorum of 7 members of the Board. Decisions are taken by majority vote of the members present.

These norms not only create a kind of mechanism for protecting collegial principles in the management of the Bank of Russia. They also do not allow interference in its management by executive authorities. Of particular note in this regard is Art. 19 of the Law on the Bank of Russia, according to which the Minister of Finance and the Minister of Economy can take part in the meetings of the Board of Directors, but only with an advisory vote.

On the whole, the Law on the Bank of Russia quite consistently implements the requirement based on the Constitution of non-interference in the activities of the Central Bank by the executive authorities. In the same article 19 of the Law on the Bank of Russia regulates a number of additional forms of interaction between the Central Bank and executive authorities. In particular, it was established that the Bank of Russia and the Government of the Russian Federation inform each other about proposed actions of national importance, coordinate their policies, and hold regular consultations. The Chairman of the Bank of Russia or, on his instructions, one of his deputies participates in meetings of the Government of the Russian Federation. The Bank of Russia advises the Ministry of Finance on the schedule for issuing government securities and repaying government debt, taking into account their impact on the state of the banking system and the priorities of the unified state monetary policy.

Such forms of interaction with executive authorities fully comply with the requirements of the Constitution regarding the independent implementation by the Bank of Russia of the function of protecting and ensuring the stability of the ruble. The relationship between the Bank of Russia and the State Duma and the Federal Assembly as a whole should be built in the same way. However, as noted above, the Law on the Bank of Russia does not fully comply with this constitutional requirement, establishing the principle of accountability of the Bank of Russia to the State Duma.

In general, from the point of view of independence criteria, the management system of the Bank of Russia can be assessed positively. Only certain provisions of the Law on the Bank of Russia need some adjustment.

In particular, it seems appropriate to extend the term of office of the Chairman of the Bank of Russia. Under current law, the term of office is 4 years. The President and the State Duma are elected for the same term, which gives them the opportunity to change the leadership of the Bank of Russia after the presidential and parliamentary elections. This state of affairs, as noted by Professor Kutafin, "is not entirely consistent with the constitutional principle of independent exercise by the Bank of Russia of the constitutional functions entrusted to it."

If we turn to the experience of foreign countries, we can note the fact that the chairmen of central banks, as a rule, are elected for 6-8 years, that is, for a longer term than the president and parliament. Such a guarantee allows central banks to carry out their activities regardless of the change in the political leadership of the country: Thus, the Governor of the Banque de France is appointed for a 6-year term. Members of the Executive Board of the European Central Bank hold their positions for 8 years. Members of the Board of Governors of the US Federal Reserve System are appointed by the President with the advice and consent of the Senate for 14 years.

The Law on the Bank of Russia establishes a closed list of grounds for the dismissal of the Chairman of the Bank from office:

▪ expiration of the term of office;

▪ inability to perform official duties, confirmed by the conclusion of the state medical commission;

▪ personal resignation letter;

▪ commission of a criminal offense established by a court verdict that has entered into force;

▪ violation of federal laws that regulate issues related to the activities of the Bank of Russia (Article 12).

The validity of most of these grounds is not in doubt. Only the rule on violation of federal laws on the Bank of Russia causes comments. Such a ground for early removal from office is not fully consistent with the requirements of Art. 75 of the Constitution of the Russian Federation. The Bank of Russia should carry out its function of protecting and ensuring the stability of the ruble independently of other government bodies, including the Federal Assembly. At the same time, it does not matter in what legal form such interference can be carried out - in the form of a federal law or a resolution of one of the chambers of the Federal Assembly. If the acts of Parliament violate the requirements of Art. 75 of the Constitution, the Bank of Russia must comply not with legislative, but with constitutional norms. In such a situation, it is unacceptable to remove the Chairman of the Bank of Russia from office only on such grounds as a violation of federal laws. The conflict that has arisen can be eliminated if the specified norm of Art. 12 of the Law on the Bank of Russia will be formulated as follows: "Violation of federal laws that regulate issues related to the activities of the Bank of Russia and do not contradict the constitutional guarantees of the independent exercise by the Bank of Russia of the function of protecting and ensuring the stability of the ruble."

It seems expedient to establish also such a procedure in which members of the Board of Directors will be appointed for a longer term than the Chairman of the Bank of Russia. According to Professor Kutafin, this will make it possible to ensure not only the continuity of the policy of the Bank of Russia, but also the independence of opinions of the members of the Board of Directors.

Finally, it should be noted the need to improve the organization of the National Banking Council as an advisory body under the Bank of Russia. In particular, many experts note the expediency of increasing the size of the National Banking Council, primarily through a wider representation of the Federation Council and credit institutions. This will expand the possibilities for identifying existing needs in the monetary sphere and ensure greater interaction between the Bank of Russia and the banking community and with the constituent entities of the Russian Federation. At the same time, of course, the status of the National Banking Council as an advisory body under the Bank of Russia should be preserved. Otherwise, the constitutional guarantees of the independence of the Central Bank, which are incompatible with the participation of representatives of state bodies, as well as commercial organizations and institutions in its management bodies, may be violated.

Property and financial independence of the Bank of Russia

Article 2 of the Law on the Bank of Russia provides for a number of rules that ensure the property and financial independence of the Central Bank. The Bank of Russia is a legal entity and independently exercises the authority to own, use and dispose of its property. Seizure of such property or burdening it with obligations without the consent of the Bank of Russia is not allowed. Financing of the activities of the Bank of Russia is carried out at the expense of its own income. In addition, Art. 2 emphasizes that the state is not liable for the obligations of the Bank of Russia, and the Bank of Russia - for the obligations of the state, if they have not assumed such obligations or unless otherwise provided by federal laws.

The issue of the responsibility of the Bank of Russia and credit institutions is resolved in a similar way: the Bank of Russia is not liable for the obligations of credit institutions, and credit institutions are not liable for the obligations of the Bank of Russia, except in cases where they assume such obligations (Article 79 of the Law on the Bank of Russia ).

These general principles of property and financial independence are implemented in a number of other provisions of the Law on the Bank of Russia. In particular, it was established that the Bank of Russia has an authorized capital of 3 billion rubles (Article 9). The presence of authorized capital reflects the constitutional nature of the Bank of Russia as a banking institution.

The law indicates that making a profit is not the purpose of the Bank of Russia (Article 3). The income he receives should be used to solve the main tasks assigned to him - to protect and ensure the stability of the ruble, including its purchasing power and exchange rate against foreign currencies; development and strengthening of the banking system; ensuring efficient and uninterrupted functioning of the settlement system; other areas of activity established by Art. 4 of the Law on the Bank of Russia.

Financing of the activities of the Bank of Russia is carried out at the expense of the income that it receives from the operations provided for in Art. 45 of the Law on the Bank of Russia, as well as from participation in the capital of credit institutions.

The balance sheet profit of the Bank of Russia is defined as the difference between its income and expenses (Article 10). 50 percent of the actually received balance sheet profit is subject to transfer to the federal budget. The remaining profit of the Bank of Russia is directed by the Board of Directors to reserves and funds of various directions. At the same time, the Law specifically emphasizes that the transfer of profits of the reporting year to the federal budget is allowed only after the annual report of the Bank of Russia is approved by the Board of Directors (Article 26).

The Law on the Bank of Russia establishes a number of additional guarantees for the property and financial independence of the Central Bank. In particular, it was established that the cost estimate and expenses not provided for in the estimate are approved by the Board of Directors. The Board of Directors establishes the forms and amounts of remuneration for the work of the Chairman of the Bank of Russia, members of the Board of Directors, deputies of the Chairman and other employees of the Bank of Russia (clauses 3 and 5 of Article 16). This excludes the possibility of influencing the Bank of Russia through such measures as denial of financing, reduction in wages, withdrawal of its funds.

The Bank of Russia is not registered with the tax authorities and is exempt from paying all taxes, fees, duties and other payments provided for by tax legislation (Articles 2 and 26 of the Law on the Bank of Russia). These norms not only ensure the replenishment of funds necessary for the implementation of the constitutional functions of the Bank of Russia, but also serve to protect it from administrative arbitrariness.

Similar norms are established by the legislation of many countries. Thus, the Law "On the National Bank of Slovakia" indicates that "the Bank manages its finances in accordance with the budget, which is approved by the Board of Directors... The Bank's activities are financed from its income" (Article 38). The same rule is established by Art. 64 of the Law "On the National Bank of Poland". The Organic Law "On the Bank of Portugal" establishes that "the Bank is a public legal entity that has administrative and financial autonomy and has property assigned to it" (Article 1).

On the whole, the degree of property and financial independence of the Bank of Russia can be quite highly assessed, which, however, does not exclude the need to change certain legislative norms.

In particular, the provision of Art. 2 of the Law on the Bank of Russia, according to which the authorized capital and other property of the Bank of Russia are federal property. This wording does not reflect the purpose and special status of the property of the Bank of Russia. This drawback can be eliminated if the specified norm is set out as follows: "The authorized capital and other property of the Bank of Russia are federal property, which is intended to carry out the constitutional function of protecting and ensuring the stability of the ruble, as well as other tasks of the Bank of Russia established by federal laws ". Such a clarification of the legal status of the Bank of Russia's property will make it possible to more effectively protect the Bank of Russia's assets abroad in cases where they are arrested or levied on the claims of foreign creditors against the Russian Federation.

This is evidenced by the scandal with the Swiss company "NOGA". Failure to comply with the decision of the Stockholm court in 1997 led to the fact that in May 2000, in order to secure a claim against the Russian Federation, the accounts of the Bank of Russia and a number of Russian companies in French banks were frozen. As noted by S.A. Golubev and G.I. Luntovsky, “this example clearly shows how important it is to preserve the independent status of the Bank of Russia and in no case allow the possibility of identifying its assets with the property of the Russian Federation. The decisions of foreign courts that considered and rejected the claims of the NOGA company were based precisely on the special constitutional status Bank of Russia and its property, as specifically indicated in the texts of the decisions."

Above, we noted the need to change the norm of Art. 2 of the Law on the Bank of Russia, according to which the Central Bank must be liable for the obligations of the state, if this is provided for by federal laws. In our opinion, this provision may violate the constitutional guarantees for the independent exercise of the function of protecting and ensuring the stability of the ruble. In order to prevent this, it would be expedient to state the specified norm in the following wording: "The state is not liable for the obligations of the Bank of Russia, and the Bank of Russia - for the obligations of the state, if they have not assumed such obligations or unless otherwise provided by federal laws that made in the presence of the conclusion of the Government of the Russian Federation and agreed with the Bank of Russia". This wording is based on the requirements established in part 3 of Art. 104 and in part 2 of Art. 75 of the Constitution of the Russian Federation.

The rule on the participation of the Bank of Russia in the capital of credit institutions also needs some adjustment. The law on the Bank of Russia is limited only to a general indication of the possibility of obtaining income from participation in the capital of credit institutions (Article 10). It does not contain any specific rules on this issue. In view of the foregoing, it seems appropriate to supplement Article 7 with provisions on exercising control over the activities of those credit institutions in whose capital the Central Bank participates, and on the procedure for using the income received from such participation.

In this regard, we also note the need to maintain the participation of the Bank of Russia in the capital of systemically important banks. The participation of the Bank of Russia in the capital of credit institutions ensures the stability of not only the banking system, but also the ruble, since an indispensable condition for maintaining the stability of any national currency is the uninterrupted and well-functioning functioning of the main or backbone elements of the country's banking system.

The next source of income of the Central Bank are the operations provided for in Art. 45 of the Law on the Bank of Russia. This article provides the Bank of Russia with ample opportunities for banking operations, but, unfortunately, in some cases it introduces not entirely justified restrictions. In particular, this applies to the rules on granting loans for a period of not more than one year secured by securities, on the purchase and sale of checks, bills of exchange with maturities of not more than six months, on the purchase and sale of bonds, certificates of deposit and other securities with a maturity of no more than one year. Such restrictions, justified under conditions of hyperinflation, are hardly appropriate in a stable state of the national currency.

The provision of Art. 26 of the Law on the Bank of Russia, according to which the Central Bank transfers 50 percent of the actually received balance sheet profit to the federal budget. This rule appears to be overly restrictive. It is designed mainly for the conditions of a stable state of the currency, and not its possible deterioration, when all the funds of the Bank of Russia should be directed exclusively to replenish its reserves. In view of the foregoing, it is proposed to state the first sentence of Art. 26 as follows: "The Bank of Russia transfers to the federal budget, if this does not contradict the task of protecting and ensuring the stability of the ruble, 50 percent of the actually received balance sheet profit for the year after the approval of the annual report of the Bank of Russia by the Board of Directors."

Legal capacity of the Bank of Russia

The Law on the Bank of Russia gives the Central Bank a fairly wide scope of civil legal capacity. Article 2 specifies that it is a legal entity. At the same time, its organizational and legal form is not determined.

In this matter, the Law on the Bank of Russia follows the patterns that exist in almost all countries. The legislation of all states, without exception, recognizes the status of legal entities for central banks. The granting of such status is carried out directly by the laws on central banks, and not by acts of civil legislation.

As a rule, the legislation does not define the organizational and legal form of central banks. The only exceptions are those few countries where central banks are established in the form of joint-stock companies (Austria, Hungary, Belgium, Greece, the Netherlands, Turkey, Switzerland, South Africa). At the same time, it should be emphasized that none of the countries recognizes the priority of civil legislation over laws on central banks. As a rule, legislation establishes the broadest forms of civil legal capacity of central banks. Thus, the Law "On the Bank of Belgium" provides that "the Bank may carry out all transactions and provide any types of services that correspond to the tasks assigned to it" (Article 13). The Reserve Bank of New Zealand Act states that "The Bank is a legal entity which cannot be wound up, bears a common seal and is granted the right to acquire, hold and dispose of movable and immovable property and to sue and be sued in court" ( part 2 article 5). The Law "On the National Bank of Slovakia" emphasizes that "the right to own property is exercised by the Bank of Slovakia in the same way as private legal entities in the field of property relations" (part 4, article 1). The question of the legal capacity of the European Central Bank is resolved in a similar manner: "The European Central Bank ... in each of the Member States of the European Community shall have the broadest legal capacity that a legal person in such a State may have; it may, in particular, acquire and alienate movable and immovable property and be a party to litigation".

In general, under the current legislation, the Bank of Russia is endowed with fairly broad rights in the field of civil law regulation. As noted above, the Central Bank has an authorized capital and other property that it owns, uses and disposes of independently (Article 2 of the Law on the Bank of Russia).

Of particular note is the fact that the Law on the Bank of Russia proceeds from the principle of unity of civil legal capacity of the Central Bank. The territorial institutions of the Bank of Russia (including the national banks of the republics) do not have the status of a legal entity, cannot make decisions of a regulatory nature, are not entitled to issue guarantees and sureties, promissory notes and other obligations without the permission of the Board of Directors. They operate on the basis of the Regulations on Territorial Institutions, which is approved by the Board of Directors (Article 84 of the Law on the Bank of Russia). Such a decision fully complies with the constitutional requirements, according to which the issues of financial, currency and credit regulation, as well as the issue of money (clause "g" of article 71) are transferred to the exclusive jurisdiction of the federation, and the Bank of Russia is defined as a single constitutional body that is endowed with clearly defined constitutional functions (parts 1 and 2 of article 75).

The most complete Law on the Bank of Russia regulates the issue of the Central Bank's operations. In particular, he has the right:

▪ provide loans for a period of no more than one year, secured by securities and other assets;

▪ buy and sell checks, promissory notes and bills of exchange, which are usually of commercial origin, with maturities of no more than six months;

▪ buy and sell government securities on the open market;

▪ buy and sell bonds, certificates of deposit and other securities with maturities of no more than one year;

▪ buy and sell foreign currency, as well as payment documents and obligations in foreign currency issued by Russian and foreign credit organizations;

▪ buy, store, sell precious metals and other types of currency assets;

▪ carry out settlement, cash and deposit operations, accept securities and other valuables for storage and management;

▪ issue guarantees and warranties;

▪ carry out transactions with financial instruments used to manage financial risks;

▪ open accounts in Russian and foreign credit institutions on the territory of the Russian Federation and foreign countries;

▪ issue checks and bills in any currency;

▪ carry out other banking operations on your own behalf, unless prohibited by law (Article 45 of the Law on the Bank of Russia).

The analysis of the above norms allows us to draw the following conclusions. Article 45 leaves open the list of operations that can be carried out by the Bank of Russia. At the same time, the necessary restrictions are set in this case. Such operations, firstly, must be of a banking nature, secondly, they must comply with the requirements of the law, and thirdly, they must not be prohibited by law.

In addition, federal laws may impose restrictions on the Bank of Russia's transactions on a commission basis (Article 45). We note in this regard that transactions with the federal budget and state off-budget funds, with the budgets of the constituent entities of the Russian Federation and local budgets, as well as operations to service the public debt and operations with the gold and foreign exchange reserves of the Russian Federation are carried out without charging a commission (Article 23).

In general, the regulation of civil law forms of banking operations seems to be quite reasonable and needs only individual adjustments, mainly related to temporary restrictions on a number of operations carried out by the Bank of Russia.

The Law on the Bank of Russia takes a more rigid approach to the issue of regulating other forms of civil law transactions. As noted above, the participation of the Bank of Russia in the capital of credit institutions is allowed only in cases directly established by law. At the same time, the Law obliges the Bank of Russia to ensure its participation in the capital of Sberbank, Vneshtorgbank and a number of foreign banks in the amount of at least 50 percent plus one share. The latter decision seems to be justified, taking into account the tasks of strengthening the banking system as a whole, protecting the savings and deposits of citizens, and, ultimately, ensuring the stability of the ruble.

Restrictions are also provided for the participation of the Bank of Russia in the capital of other (non-banking) organizations. It is allowed only in the capital of those organizations that ensure the activities of the Bank of Russia, its institutions and employees, as well as in other cases provided for by federal law (Article 7 of the Law on the Bank of Russia).

At the same time, the Law on the Bank of Russia does not regulate the procedure for the participation of the Central Bank in the capital and activities of international organizations, limiting itself only to a general indication that cooperation in the monetary, foreign exchange and banking spheres with international organizations and central banks of foreign states is regulated by international treaties , individual federal laws and interbank agreements (Article 8).

The Law on the Bank of Russia contains a number of rules that delineate the competence of the Central Bank's management bodies to exercise civil rights and obligations. Basically, the relevant decisions are taken by the Chairman of the Bank of Russia. He ensures the implementation of the functions of the Bank of Russia, acts on its behalf and represents its interests in relations with state authorities, organizations and institutions (Article 18).

And only in certain issues does the Law limit the competence of the Chairman of the Bank of Russia. The Board of Directors has been placed under the jurisdiction of, inter alia, matters relating to the creation and liquidation of institutions and organizations of the Bank of Russia; on participation in international organizations; on participation in the capital of organizations supporting the activities of the Bank of Russia, its institutions, organizations and employees; on determining the limits of operations on the open market; on the sale and purchase of real estate to support the activities of the Bank of Russia (Article 16 of the Law on the Bank of Russia).

Such a delimitation of the competence of governing bodies seems to be generally justified, and only some of its provisions need to be clarified. In particular, it is necessary to supplement the rule on the purchase and sale of real estate, limiting its effect either on real estate objects or on the amounts of transactions. It is necessary to do this in order not to burden the Board of Directors with questions about the acquisition or alienation of inexpensive or insignificant real estate.

Concluding the analysis of the status of the Bank of Russia in terms of the criteria for its independence, it should be noted the need to change a number of norms of the current legislation. However, unfortunately, such a task is not on the agenda. On the contrary, there is a real threat of cancellation of many guarantees of the independence of the Bank of Russia, as evidenced by the draft amendments to the Law on the Bank of Russia.

Author: Shevchuk D.A.

<< Back: 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)

>> Forward: Banking supervision (The concept and essence of banking supervision. Objects of banking supervision. Credit organizations and their activities as an object of banking supervision. Tasks and functions of banking supervision. Divisions of banking supervision. Inspection of credit organizations. Procedure for inspecting credit organizations. Inspection report of a credit organization. Conducting banking operations by the Bank of Russia . Procedure for carrying out other banking operations. Settlements by payment orders. Execution of payment orders. Settlements under a letter of credit. Settlements for collection. Settlements by checks. Credit, investment and financial consulting)

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